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R v Haydar (No.3) [2017] NSWSC 159 (31 March 2017)

Last Updated: 31 March 2017



Supreme Court
New South Wales

Case Name:
R v Haydar (No.3)
Medium Neutral Citation:
Hearing Date(s):
22 February 2017; 23 February 2017; 24 February 2017; 27 February2017; 7 March 2017; 20 March 2017; 21 March 2017
Date of Orders:
31 March 2017
Decision Date:
31 March 2017
Jurisdiction:
Common Law - Criminal
Before:
Garling J
Decision:
(1) I find the accused guilty of the offences in Counts 1 and 2 of the Indictment presented on 22 February 2017.
(2) I direct that convictions be entered for the offence of murder, and the offence of wounding with intent to cause grievous bodily harm.
(3) I stand the proceedings over to 2pm on 5 May 2017 for proceedings on sentence.
Catchwords:
CRIMINAL LAW – murder – trial by judge alone
CRIMINAL LAW – wounding with intent to cause grievous bodily harm – trial by judge alone
CRIMINAL LAW – defence of substantial impairment by abnormality of mind – depression – whether capacity to control self substantially impaired – whether impairment so substantial so as to warrant reduction of liability from murder to manslaughter
CRIMINAL LAW – murder – whether intent to kill or intent to inflict grievous bodily harm
Legislation Cited:
Cases Cited:
R v Haydar (No.2) [2017] NSWSC 131
Texts Cited:
Not applicable
Category:
Principal judgment
Parties:
The Crown
Haydar Haydar (Accused)
Representation:
Counsel:
M Barr (Crown)
J Stratton SC (Accused)

Solicitors:
Director of Public Prosecutions (Crown)
Zahr Partners (Accused)
File Number(s):
2015/95401
Publication Restriction:
Not applicable

REASONS FOR VERDICT

  1. On 22 February 2017, the Crown presented an Indictment against Haydar Haydar which contained three counts.
  2. The accused, Haydar Haydar, entered pleas in respect of each of those counts. The counts and the pleas are as follows:

Plea – Not Guilty of Murder but Guilty of Manslaughter.

(2) For that he on 30 March 2015 at Bexley in the State of New South Wales, did wound Ola Haydar with intent to cause Grievous Bodily Harm to Salwa Haydar.

Plea – Not Guilty.

(3) For that he on 30 March 2015 at Bexley in the State of New South Wales, did recklessly wound Ola Haydar.

Plea – Guilty.

  1. I note that Count 3 is an alternative count to Count 2.
  2. The Crown did not accept the plea of guilty to manslaughter in full discharge of the first count on the Indictment. The Crown did not accept the plea of guilty to Count 3 in satisfaction of Count 2.
  3. The trial is being conducted by a judge alone as a result of an application made by the accused on 21 February 2017. The circumstances surrounding that application, and the reasons for which I made the order, can be found at R v Haydar (No.2) [2017] NSWSC 131.
  4. Section 133 of the Criminal Procedure Act 1986 provides for certain requirements of a judge who tries criminal proceedings without a jury. That section is in the following form:
“133 Verdict of single Judge
(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.
(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.
  1. Accordingly, it is necessary that I set out the principles of law which I have applied, and the findings of fact upon which I rely in reaching my verdict. As well, if there is any warning of a kind given to a jury which would be applicable in this case, then I must set that out.
  2. It is convenient to commence these reasons by reference to some general principles of law which would be the subject of directions given by me to a jury in every criminal trial. These are directions which are applicable to me and which I am required to, and which I do, apply.

Principles of Law

Overall Duty and Responsibility

  1. It is my duty and responsibility to consider whether the accused is guilty or not guilty of the each of the charges, and to return a verdict according to the evidence which I have heard, in accordance with the applicable law.

Application of Principles of Law

  1. I am bound to apply the principles of law which are contained in these reasons to the facts of the case as I find them to be.

Impartiality

  1. In considering this verdict, I must act impartially and dispassionately. I must not let emotion sway my judgment. Neither prejudice nor sympathy has any role to play in the determination of this case. My task must be undertaken free of prejudice or sympathy in any of its forms.

Burden of Proof

  1. This is a criminal trial of a most serious nature. The burden of proof of guilt of the accused is placed on the Crown. That onus rests upon the Crown in respect of every element of each of the offences with which the accused is charged. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence, but for the Crown to prove his guilt and to prove it beyond reasonable doubt.
  2. It is, and always has been, a critical part of our system of justice that a person tried in this court is presumed to be innocent unless and until he or she is proved guilty beyond reasonable doubt. This is called the presumption of innocence. The words "beyond reasonable doubt" are words of ancient origin in the law and are plain words which do not require elaboration. If I have a reasonable doubt about the guilt of the accused, he is entitled to be acquitted.
  3. I remind myself that the Crown does not have to prove every single fact in the case beyond reasonable doubt. The onus which rests on the Crown is to prove the elements of the offences with which the accused is charged, beyond reasonable doubt. This principle of law, namely that the Crown has the job of proving guilt beyond reasonable doubt, is so fundamental to the delivery of criminal justice that it is a principle that must be kept in the forefront of my mind in the course of, and throughout, my deliberations.

Witness Evidence

  1. It is for me to assess the various witnesses and decide whether they are telling the truth, or are reliable, and whether I accept their evidence. My ultimate decision as to what evidence I accept, and what evidence I reject, may be based on a range of matters, including the context of what the witnesses had to say, the manner in which the witness said it and the general impression which he or she made upon me in giving evidence.
  2. In assessing the evidence, I am expected to use my own qualities of reasoning, my experience and common sense, my understanding of people and my understanding of human affairs.
  3. In relation to accepting the evidence of witnesses, I am not obliged to accept the whole of the evidence of any one witness. I may, if I think fit, accept part and reject part of the same witness's evidence. In other words, the fact that I do not accept a portion of the evidence of the witness does not mean that I must necessarily reject the whole of the witness's evidence. I can accept part of the evidence of a witness if I think it is worthy of acceptance.

Silence of the Accused

  1. In the case for the defence, the accused has not given any explanation himself by giving evidence from the witness box in response to the Crown's case. I remind myself that an accused person may always, by giving evidence, make a response to the case presented by the Crown by way of an explanation for the whole or parts of the Crown's case, but there is no obligation on him so to do. Although an accused may give evidence in relation to the whole or any part of the Crown's case, he may equally elect to give no such explanation. The accused is entitled to say nothing and make the Crown prove his guilt.
  2. I remind myself, as a matter of law, that the silence in court of the accused cannot be used by me against him. The election of the accused not to offer an explanation for the whole or any part of the Crown's case by giving evidence himself does not constitute any form of admission by the accused and no such inference must be drawn. Nor must I use such an election by the accused to fill in gaps in the evidence tendered by the Crown and it must not be used as a makeweight in assessing whether the Crown has proved its case beyond reasonable doubt. I must not speculate about what might have been said in evidence if the accused had himself given evidence.
  3. In this context, I again remind myself that the Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offences charged. The accused does not bear any onus. The accused is presumed to be innocent until I have been satisfied beyond reasonable doubt by the Crown that he is guilty.

Good Character

  1. The accused, in his case, has raised the question of his good character. It is not in doubt that he is a person of previous good character.
  2. The law provides that I am entitled to take the fact of an accused’s previous good character into account in his favour on the question of whether the Crown has proved the accused’s guilt of the offences charged beyond reasonable doubt. The fact that the accused is a person of good character is relevant to the likelihood of his having committed the offences alleged. I can take into account the accused’s good character by reasoning that such a person is unlikely to have committed the offences charged by the Crown. Whether I do reason in that way is a matter for me.
  3. Further, I can use the fact that the accused is a person of good character to support his credibility. I may reason that a person of good character is less likely to lie or give a false account either in giving a history to the expert psychiatrists or in giving an account of the events to the police. Whether I reason in that way is a matter for me to determine.
  4. I direct myself that none of this means that good character provides the accused with some kind of defence. It is only one of the many factors which I am to take into account in determining whether I am satisfied beyond reasonable doubt of the guilt of the accused. What weight I give to the fact that the accused is a person of good character is completely a matter for me, but I note that I should take that fact into account in the ways referred to above.

Addresses of Counsel

  1. I have heard addresses from the Crown Prosecutor, and from Mr Stratton SC, counsel for the accused. I will consider those submissions that have been made in their addresses and give to the submissions such weight as I think fit. I remind myself that in no sense are those submissions evidence in the case, and that counsels’ arguments provide a way of viewing the evidence from a different perspective, the Crown as the accuser and from the accused.

Inferences

  1. I am entitled to draw inferences from the direct evidence. Inferences are conclusions of fact rationally drawn from a combination of proved facts.
  2. In the context of a criminal trial, where proof of the offences is required beyond reasonable doubt, I direct myself that I should not draw any inference adverse to the accused from the direct evidence unless I am satisfied that it is the only rational inference in the circumstances.

Expert Evidence

  1. I remind myself about the principles relating to expert evidence. In this case I have heard evidence from three expert psychiatric witnesses: Dr Nielssen, Dr Allnutt and Dr Westmore. An expert witness is a person who has specialised knowledge based on their training, study or experience. Because they have such knowledge, they may express an opinion on relevant matters that fall within their expertise. Other witnesses only speak of facts.
  2. The expert evidence of these psychiatrists is admitted to provide me with psychiatric information and opinion which is within the witness's expertise, but which is likely to be outside the experience and knowledge of a lay person.
  3. As well, Dr Istvan Szentmariay, a forensic pathologist, provided an expert report about the post-mortem examination of the deceased, the various wounds which were observed and an expert opinion as to the cause of death of the deceased.
  4. I must bear in mind that if, having given the matter careful consideration, I do not accept the evidence of any of the experts, then I do not have to act upon it. Indeed, I do not have to accept even the unchallenged evidence of an expert. However, unless such evidence is simply unbelievable, I note that I would need to have a good reason to reject it.
  5. To the extent that there is any conflict within the evidence of an expert, it is for me to decide which part or parts of that evidence I accept and which part or parts I reject. I should remember that the evidence relates only to part of the case and that, whilst it may be of assistance to me in reaching a verdict, I must reach my verdict having considered all of the evidence. To the extent that there is any difference (or differences) between the evidence of the experts, it is for me to decide which evidence of which expert I accept and which I reject.

Essential Elements of Each Offence

  1. In considering whether the prosecution has made out its case beyond reasonable doubt, it is appropriate that I set out the essential elements of each offence, each of which must proved by the Crown.

Count 1: Murder of Salwa Haydar

Murder – Essential Elements

  1. In order to prove the offence of murder, the Crown must establish, beyond reasonable doubt, each of the following elements:
  2. Unless the Crown proves each and every one of these essential elements beyond reasonable doubt, I cannot find the accused, Haydar Haydar, guilty of murder.

Substantial Impairment by Abnormality of Mind – Elements of the Partial Defence

  1. If the Crown has proved each of the elements set out in [34] above, beyond reasonable doubt, then before concluding that the accused, Haydar Haydar, is guilty of murder, it is necessary that I consider whether he should be convicted of manslaughter and not murder.
  2. This is because in answer to the charge of murder, the accused relies upon the provisions of s 23A of the Crimes Act 1900 by way of a defence of substantial impairment caused by an abnormality of mind arising from an underlying condition. The effect of this defence is that any verdict of guilty would only be to a charge of manslaughter and not murder.
  3. In considering that matter, I must ask whether the accused has established the partial defence of “substantial impairment by abnormality of mind” (“impairment defence”). The accused bears the onus of proving this defence on the balance of probabilities.
  4. Section 23A of the Crimes Act is in the following form:
“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.
(2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible.
(3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section.
(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.
(6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death.
(7) If, on the trial of a person for murder, the person contends:
(a) that the person is entitled to be acquitted on the ground that the person was mentally ill at the time of the acts or omissions causing the death concerned, or
(b) that the person is not liable to be convicted of murder by virtue of this section,
evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered.”
  1. The impairment defence requires me to be satisfied, on the balance of probabilities, that:
  2. In considering the impairment defence, I must note the following:

Count 2: Wounding Ola Haydar with Intent to Cause Grievous Bodily Harm to Salwa Haydar.

  1. In order to prove the offence of wounding with intent to cause grievous bodily harm, the Crown must prove, beyond reasonable doubt, each of the following elements:
  2. Unless the Crown proves each of these essential elements, beyond reasonable doubt, then I must find the accused, Haydar Haydar, not guilty of this count.

Count 3: Reckless Wounding

  1. As this count is in the alternative to Count 2, I only consider this count if I have not been satisfied that the Crown has proved beyond reasonable doubt that the accused is guilty of the offence in Count 2.
  2. In order to prove the offence of reckless wounding, the Crown must prove, beyond reasonable doubt, each of the following elements:
  3. Unless the Crown proves each of these essential elements beyond reasonable doubt, then I must find the accused, Haydar Haydar, not guilty of this count.
  4. However, as the accused has entered a plea of guilty to this count when he was arraigned at the start of the trial, I am entitled to accept that plea and, on the basis of it, to be satisfied that the accused admits each of the essential elements of the offence. Accordingly, if it becomes necessary to reach a verdict on this count, I am entitled to find, without further consideration, that the accused is guilty of this offence.

Crown Case – In Outline

  1. The Crown case is that the accused, in the context of and against a background of a volatile marital relationship with his wife, Salwa Haydar (“the deceased”), returned home from a two week visit to his family in Lebanon. By that time, he had formed the intention of living apart from his wife in separate residential accommodation.
  2. On the day he arrived in Sydney, the accused was present at the deceased’s house (“the Bexley townhouse”) when she returned in the evening, having been at work. Their 18 year old daughter, Ola, was also present because her mother had collected her from university where she was studying.
  3. Shortly after the return of the deceased and Ola to their home, the deceased entered the kitchen and started preparing dinner. She asked the accused to fetch some cooking oil from the garage. He declined. Thereafter an argument developed between them about the manner in which the deceased contributed to the domestic life of the family.
  4. On the Crown case, the deceased picked up a knife which he had brought to the premises, and entered the kitchen. There the argument between the accused and the deceased continued, and the accused stabbed the deceased. Upon hearing the argument and attack, Ola entered the kitchen and by placing herself between the accused and the deceased, attempted to stop him from attacking her mother. In the course of that interference, and whilst he was wielding the knife at the deceased, the accused stabbed Ola and caused significant injuries to her right hand.
  5. The violent scuffle between the deceased and the accused then moved into the lounge room where the accused continued to stab the deceased in a frenzied attack. The accused stabbed deceased over 30 times, to her front, her back, her face and other parts of her body.
  6. Ola, who was present in the lounge room and witnessing the attack, called upon the accused to stop attacking the deceased. When he did not, she telephoned 000. The accused attempted to discourage that call whilst he continued attacking the deceased.
  7. When the accused could not persuade Ola to cease calling for help, he took the knife and the deceased’s handbag and left the premises in his car. He drove to his brother’s house and left his car there. The police later found the blood-stained knife in the accused’s car. There were blood stains in the car as well.
  8. The accused’s brother drove him to Kogarah Police Station where the accused informed the police that he had stabbed his wife.
  9. The Crown accepted that it is open to the Court to find that at the time the stabbing occurred, the accused was substantially impaired in his capacity to control himself because he was suffering from an abnormality of mind due to an underlying depressive illness. However, the Crown contended that the Court would find the accused guilty of murder because the accused was motivated to kill the deceased, and carried through that motivation in an attack for which the moral culpability is at a very high level, and the impairment of the accused was not sufficient to justify anything other than a verdict of murder.

Case for the Accused – In Outline

  1. The accused accepted that he attacked his wife with a knife and killed her. He accepts that at the time he did so, he had an intention to cause her grievous bodily harm. He does not accept that he intended to kill her. However, the accused says that the Court would be persuaded that he had a long-standing depressive illness which had subsisted for over two years.
  2. The accused submitted that it was clear that, at the time of the killing of his wife, he was suffering from a deep depression relating to his marital relationship and family events in Lebanon. He further submits that when confronted in a domestic context with an argument provoked by his perception that his wife was unfaithful, he completely lost his self-control, took a knife which he had found by chance in his wife’s handbag, and in an impromptu reaction to his wife’s comments, attacked her.
  3. The accused says that he has no memory of, that is to say he is amnesic of, the events surrounding the actual attack itself. His case is that the Court would find that he was substantially impaired by reason of his depressive illness in controlling himself, and that that substantial impairment caused his inability to control himself such that he killed his wife. He submitted that the impairment was so substantial, and his moral culpability so diminished, that the Court would reduce his offence to one of manslaughter, consistent with his plea.
  4. The accused did not advance any case, or make any submission contrary to a finding of guilt on the second count of the Indictment. He accepted, by his plea of guilty to the third count on the Indictment, that he wounded his daughter Ola. He accepted by his plea of guilty to manslaughter on the first count that he intended to cause grievous bodily harm to the deceased. Notwithstanding these facts, he simply does not accept that the Crown has discharged its onus with respect to each of the elements on the second count.

Facts

  1. It is necessary for me to record the facts which I find, and upon which I base my verdict. I find each of these facts on the balance of probabilities, unless otherwise expressly stated.
  2. The vast bulk of the facts are not in dispute. With respect to the marital relationship between the accused and the deceased there are variations between the evidence of different people, coming no doubt from their different observations at different times. I do not detect in these various accounts any real variation in the underlying picture which they present. That is, that the accused and the deceased had an unhappy marital relationship. In 2013, they had sold their family home and divided the proceeds. Each of the deceased and the accused had purchased their own property. By 2015, it had reached the point where the deceased had concluded that she should live separately and apart from the accused and obtain a divorce from him, and the accused was ambivalent about a clean break in the relationship. He seemed to regard this separation and living apart as inevitable but he was not really willing to give up on the marital relationship and wished to restore it to a state which he regarded as a good one, or else he wished to control the timing and circumstances of the divorce.
  3. The deceased was born in 1969 and was about 13 years younger than the accused, who was born in 1956. They both came from the village of Aytaroon in south Lebanon. They both came from large families. Some members of each family came to Australia with the rest remaining in Lebanon.
  4. The accused and deceased were married in Lebanon in about 1986 and came to Australia in about 1987. The accused and the deceased had four children – the eldest, Amani, a qualified lawyer, was born in about 1987. By the time of the events in question, Amani was married, the mother of one child and living away from the house where her mother and two sisters lived.
  5. The second child of the marriage, Ibrahim, was born in about 1991. Ibrahim was educated to university level. In early 2013, about six weeks before he graduated in the disciplines of business and finance, he was arrested and charged with criminal offences relating to drugs and firearms, and sentenced to a term of imprisonment. At the time of the attack by the accused on the deceased, Ibrahim was in custody serving his term of imprisonment.
  6. The third child of the marriage was Nour, who was born in 1993. She qualified with a tertiary degree in journalism and was employed as a casual worker in a shop at Sydney Airport at the time of her mother’s death. She lived with her mother and her sister Ola in the Bexley townhouse.
  7. The youngest child of the marriage was Ola. Ola was born in about 1997. She was 18 at the time she witnessed her father kill her mother. She was at that time studying architecture and design at the University of Technology in Sydney. She also lived in the Bexley townhouse with her mother and sister.
  8. For many years the family lived in a house in Bexley Road, Bexley (“the family home”). Initially, Salwa stayed at home and raised her family. It is not entirely clear what the accused did to provide for his family for many of those years. By the time he was arrested, the accused was earning money by driving a taxi and also teaching English to persons for whom it was a second language. As well, it appears from time to time, he undertook some interpreting from Arabic into English.
  9. The deceased, at the time of the events, was working at St Vincent’s Hospital for a service known as the Quit Line. It is not clear when the deceased commenced working at Quit Line, but a fellow worker with whom she became friendly, Helen Francis, said that she first met the deceased in about in 2012. Another worker, Mr Evert Rauwendaal, says that he met the deceased in 2010 when he started working at St Vincent’s Hospital as a drug and alcohol counsellor. The precise date that the deceased commenced working at St Vincent’s Hospital is not material. She worked there full-time in March 2015, and apparently enjoyed it.
  10. Between about 1992 and 1996, the accused and the deceased shared the family home with their children and also with Abbas Haidar and Jinane Haidar, who are married. Abbas Haidar is the younger brother of the accused. Jinane Haidar is the younger sister of the deceased.
  11. During the time when Jinane and Abbas lived with the accused and the deceased, Jinane observed that they were always arguing. Sometimes the arguments were over little things and sometimes over more serious things. She said that in those arguments the deceased would question their relationship and the accused’s traditional ways. The Haidars did not observe any physical violence between the accused and the deceased.
  12. Jinane remained close to her sister. They would speak at least weekly, if not more frequently, and often discussed their private lives. Jinane said that since about 2005, her sister, the deceased, had been talking about separating from the accused because she did not want to continue in the relationship. The deceased told Jinane that in about 2010 she had confronted her husband to inform him that their relationship was not working and that she wanted a separation. According to the deceased, the accused did not take her seriously and laughed at her.
  13. Nour recalled growing up in a household where her parents would regularly bicker and argue between themselves.
  14. Amani recalled that in 2003 there was a heated argument between her parents relating to divorce. Apparently, according to Amani, the deceased informed the accused that she wanted a divorce. The accused replied with words to this effect:
“What you are saying is disgusting. You are disgusting for mentioning divorce. Do you know what kind of women seek divorce?”
  1. Amani also recalled heated arguments on other occasions. She recalls the accused in the course of an argument threatening the deceased by using a phrase in Arabic meaning “I will slaughter you” or “I will choke you”. She also recalled the accused approaching the deceased with an aggressive stance although on only one occasion did she recall the accused pushing the deceased. She recalled on that occasion that the accused pushed the deceased in the neck area forcing her up against a wall.
  2. Amani left the family home in 2013 when she got married. She stayed close to the deceased and visited regularly.
  3. In the course of 2012, the deceased stopped wearing her hijab. She told Ms Francis, her work colleague, that the accused was not pleased by this decision. This is one example of some of the cultural differences between the accused and the deceased. In a conversation with a neighbour, Ms Amanda Jachowski, in September 2014, the accused described her life with her husband and the difficulties which she faced in this way:
“I was in my teens when we married and I came to Australia to have children with him. I believed that if I did the right thing and had his children and stayed home to care for them, he would work and support us. We started to have challenges in our marriage. Because I came here so young, I grew up with an Australian mindset, and Haydar had a Lebanese village mindset. Due to our difference in our mindset and cultural beliefs, it placed a large strain on our marriage. In my culture you don’t get divorced. I did not get on with Haydar’s traditional friends. ... Haydar treated our daughters differently [to our son] and disciplined them harshly. This caused further problems in our marriage, because they would question why they were being treated differently to their brother. Haydar and I argue a lot. My aim is to enjoy my life with my daughters.”
  1. I accept that the contents of this conversation accurately described the deceased’s perspective of her relationship. That description is in part supported by a remark made by the accused to his daughter, Nour, probably during 2013 or perhaps late 2012. Nour recalled that the accused responded that he would only agree to a divorce from the deceased once she and her sister had married “... because he knew how society viewed a divorced woman raising single daughters”.
  2. In 2012, there was a significant incident which appears, together with subsequent events, to have caused a marked further deterioration in the relationship between the accused and the deceased. It seems that in 2012 the accused and the deceased had difficulties with their son’s behaviour. The deceased in 2014 told Ms Jachowski that her son went off the rails and fell into the company of a gang of youths who were engaged in drug dealing. He was ultimately arrested in April 2013 on drug-related charges.
  3. Clearly, Ibrahim’s behaviour caused difficulties. The deceased blamed the accused for failing to adequately parent Ibrahim by setting proper boundaries for his behaviour and punishing any misbehaviour. She gave an example to Ms Jachowski in their 2014 conversation. She said, and I accept that this is an accurate recounting of her perception, this:
“I blame and resent my husband. I think it’s his fault my son is in jail. I saw him going off the rails. I was trying everything I could to get him out of the gang. Haydar would never set boundaries for our son and he would not give him any consequences. Whenever I did, Haydar would undermine me, for example, I would set a curfew that he would have to be home at a certain time. If he was not home by the curfew, I would not unlock the door to let him in, but Haydar would let him in. Haydar would yell at me for not letting him in and it would be my fault and not my son’s fault for him being home late. I tried to get him out of the gang, to get him out of the country to the United Kingdom to live with my brother. I felt powerless to stop what I could see was happening to my son.”
  1. It was in that context that she remarked that the accused had treated their daughters differently.
  2. In late 2012, there was an argument between the deceased and her son Ibrahim. He threw his mobile phone at the deceased and hit her in the eye. The accused was present in the house at the time but not in the room where the incident took place. The deceased blamed the accused for her son’s behaviour and that incident. This incident also fuelled the deceased’s perception of the accused’s inadequacy as a father, since the deceased believed that the accused’s failure to intervene or to discipline Ibrahim lead to the criminal offending of their son. This was a constant and significant source of conflict. Such was her injury that the deceased spent a short time, one or two days, in hospital. Her eyesight was damaged to some extent, although it is not clear on the evidence what the ultimate extent was.
  3. At the time of the mobile phone incident, Nour heard the deceased say to the accused:
“Why didn’t you get up and help me? You heard us screaming, you heard us fighting, you just sat there.”
  1. It was Nour’s opinion that her father had done nothing to stop her brother from being aggressive or violent towards the deceased. This made the deceased particularly angry and, according to Nour’s evidence, which I accept, talk about divorce became more and more constant after the mobile phone throwing incident.
  2. At the time Ibrahim was arrested, Abbas Haidar observed that his brother’s behaviour changed. He became less social and spoke less. He said that whilst the accused was always a quiet person, he had been previously much more relaxed about his life. This changed when his son was arrested.
  3. In September 2013, the accused and deceased decided to sell the family home where they had lived since the early 1990s. The decision to sell was made at the same time as the deceased and the accused were called upon to find money to assist with their son’s legal fees. After a period of indecision as to what they would do, the deceased and accused, apparently quite amicably, divided the proceeds of sale of the family home. The accused bought an apartment which was then rented out. The deceased bought the Bexley townhouse, which is the place in which she was ultimately killed by the accused.
  4. The Bexley townhouse comprised three bedrooms essentially on one level. There were stairs up into the townhouse from the street front and there was a garage at street level, next to the townhouse. Inside the townhouse there was a single large living and dining room area with an enclosed kitchen opening into it. The three bedrooms and a bathroom were along a hallway and separate from the combined living room.
  5. According to Nour, the initial arrangement between her parents was that they would live separate lives in their own separate residences. Their relationship was not good at that point in time and the deceased had asked the accused for a divorce on more than one occasion. However, it appears that at the last moment the accused and the deceased reached an accommodation which allowed the accused to move into the Bexley townhouse on the proviso that he paid $150 per week in rent.
  6. During the period of their occupation, which commenced in about September 2013, from time to time the accused and deceased shared a bedroom. At other times, the accused slept on one of the couches in the living room. Each of their two daughters, Nour and Ola, occupied their own bedroom.
  7. According to their daughters, their relationship whilst in the Bexley townhouse continued much as it had before and according to their mother, the accused did not change his behaviour around the house. The bickering and arguing continued – it varied in intensity and over time.
  8. In March 2014, the accused, who was at that time driving a taxi, had an episode of confusion and amnesia. He managed to contact his daughter and he was admitted to St George Hospital. His episode was diagnosed as one of transient global amnesia. After spending one night in hospital, he was discharged home to be followed up by his general practitioner. The evidence did not disclose any further incident of this kind. This incident does not play any role in the events relevant to these offences.

Events Leading up to 30 March 2015

  1. Sometime in early March 2015, Abbas decided that he would return to Lebanon to visit his mother and his family. He had previously discussed doing so with the accused, who had said that he (the accused) would accompany Abbas on a trip back to Lebanon, if Abbas decided to travel back there.
  2. Prior to departing for Lebanon, the relationship between the accused and the deceased continued to deteriorate. The accused had packed up most of his belongings and had stored them in the Bexley townhouse garage. In discussions with the deceased, the accused was asked, and he agreed, to leave his door key to the townhouse when he went to Lebanon. Although he ultimately did not leave his door key behind, I infer, from his agreement to do so, that he recognised the view of the deceased (at least) that she wanted him to move out of the Bexley townhouse. The accused informed the deceased that he would not pay any rent whilst he was away in Lebanon.
  3. According to Nour in a conversation with the accused a few days before he departed for Lebanon, she saw that he was packing up his bookshelf, and he told her that the deceased had “told me to pack my stuff, so I’m packing my stuff”.
  4. Although the arrangement with his brother was that they would leave for Lebanon on 15 March 2015 and return on 21 April 2015, the accused did not tell his family how long he would be going for. According to Ola, neither she nor her sisters knew exactly when the accused was returning because he had gone without telling them when he would be back. The accused had mentioned to them that he might stay in Lebanon with his mother for a couple of months, but he was not sure and would wait and see what developed. It is not clear why there was a difference between the date fixed for his return to Sydney, and the uncertain date for his return, which the accused gave to his daughter. In my view, the variation is not significant, except that the accused’s version, accepted by his daughter, lead to her surprise on the day of his return to Sydney.
  5. The day before he left for Lebanon, the accused took the deceased’s mobile phone from her handbag and accessed the text messages stored on it. He took a photograph on his mobile phone of those messages. They were sent by the deceased to Mr Rauwendaal. They read:
“That wasn’t easy, I’ve been asking for this for yrs. But there has been few reasons to lead to this.”
“I plan to get legal advise and start divorce proceedings”;
“This is the first time that I feel he really accept that its over”;
“He was disrespectful, passive/aggressive, emotionally abusive. He also made it very plain he considered all our assets to be his because he'd insisted I not work outside the home”;
“I want nothing more than to be with you tonight. I feel very vulnerable emotionally”.
  1. It became apparent after his return from Lebanon that the accused regarded these text messages as evidence that the deceased was being unfaithful to him, and having some sort of extra-marital affair. However, he did not tell his brother Abbas of this whilst they were in Lebanon. He did however tell Abbas that he (Haydar) was having difficulty being in Lebanon, that his mother’s illness made him very sad and that he could not be away from his son for more than a month. He told Abbas that he wanted to go back to Australia because his son, Ibrahim, was missing him.
  2. The accused left for Lebanon with his brother, Abbas, very early on the morning of 15 March 2015.
  3. Whilst in Lebanon the accused was in Abbas’ company for the majority of the time. Abbas described their experience in Lebanon as not being a pleasant one. He said that their mother was suffering from Alzheimer’s disease and that her condition would vary from recognising them to not knowing who he and the accused were. He said that this upset him, and it apparently upset the accused.
  4. Abbas observed that the accused was not enjoying being in Lebanon, that he was not being very sociable and that he seemed to be waiting for calls from his son and when his son did not call he would get upset. Abbas said that he observed that the accused did not sleep very much, no more than two hours a night. He also observed that the accused did not eat very much at all. Besides visiting his mother, the accused and Abbas were also involved in making arrangements for the funeral of an uncle who had recently died from a heart attack. Abbas observed that the accused appeared to be relieved after he made arrangements for a ticket to return home.
  5. At the time of his departure from Lebanon, Abbas counselled the accused about his relationship with the deceased, although he was not privy to the text messages between them whilst the accused was in Lebanon. He counselled him to get a divorce from his wife, saying he believed it would be the better solution for them both.
  6. There had been an exchange of text messages between the accused and the deceased whilst the accused was in Lebanon. Those text messages included a suggestion by the accused to the deceased that she should join him in Lebanon. The message also seems to me to have included a suggestion that the deceased had not been behaving appropriately. On 21 March 2015, the accused sent the deceased this message:
“Think sensibly. I say this with utmost sincerity. You based your thoughts on false foundations. You’ve committed a grave mistake. Do you remember when I lately took an oath on the Quran? I swear by God, I was saying the truth and never committed adultery since I got married. You’re in a state of loss now, and I don’t wish this for the rose that I brought from Aytaroon, and from whom I have four smart children. You’ll turn a grandmother soon and it is a pity that you beg for coffee from this and that, some of whom may take advantage of your weakness while you live in dreams. I say this at the time that my heart is broken. I swear by God that I want nothing for [you] except your complete wellbeing. Think about purchasing a home together and be the real Salwa.”
  1. I take from this message that the accused was accusing his wife of being unfaithful to him, and reminding her that he had remained faithful to her. He was also clearly expressing his wish for a marital reconciliation. There does not appear, in any of the messages extracted by police from both the mobile phone of the deceased and the mobile phone of the accused, to be a direct response to this.
  2. However, some days later, on 25 March 2015, at about 4.23pm, there were a series of messages from the deceased to the accused which included the following:
“You are not normal, and all the methods in which you dealt with me were incorrect”;
“And who takes advantage? My weakness and my weakness are because of you”;
“Get married and forget about me”;
“If a man who goes out with me, cares for me and treats me like all men, I would ... and things would have been different”;
“And after you’ve caused all the losses, you have no right to talk”
  1. It is a little difficult, in the absence of all of the text messages and the oral conversations, to reach a conclusive understanding of the state of the marital relationship from these messages.
  2. Various actions by the accused suggested that he recognised that the marriage was finished. In particular, he had packed his personal belongings up and put them in the garage at the Bexley townhouse. He had ceased paying rent there. To that extent, he went along with the fact that the marriage had ended. But, other actions such as the keeping of a key to the Bexley townhouse when it was meant to be returned, inviting his wife to come to Lebanon and entreating her to think about purchasing a home with him and “... be the real Salwa” all suggest that the accused was not willing to accept that the marriage was completely finished.
  3. From the deceased’s perspective, it seemed that their relationship was adequately described by her in a conversation with Ms Francis at work on 26 March 2015 at a time when the accused was in Lebanon. Ms Francis gave this account of the conversation. I accept the account and I accept that it showed the way in which the deceased was thinking about her relationship with the accused:
“Salwa told me that Haydar kept telling her that he loved her, and that there was nothing wrong with the marriage but that there was an issue with her and how she was viewing the marriage. Salwa told me that if Haydar had come part way to seeing things from her perspective and making an effort to change, then she would have been willing to give it another try (the marriage). She told me that she knew that he (Haydar) wouldn’t change. Salwa told me that she had sent Haydar a text message to have a think about what he wanted out of the relationship and that she would think about what she wanted out of the relationship and that they would talk about it when he got back. It is in this conversation that Salwa told me that Haydar had asked if she had done something, or if she was doing something she shouldn’t. By this Salwa believed that Haydar thought that she was seeing somebody else. Haydar believed Salwa was having an affair. Salwa said ‘He’s going to make it difficult for me’.
By this, Salwa believed that Haydar was not going to change. She wanted the marriage to end, but she knew that Haydar didn’t.”
  1. However, one matter seems to be clear, and that is that the accused was firmly of the view at this time that his wife had been unfaithful to him, and that it was this that was the driving force behind her wanting to end the marriage. He seems to have concluded that it was in his interests to be able to prove to his daughters, and if necessary demonstrate to his family, that the breakdown in the marriage was the deceased’s fault and not his own – hence he took a photograph of the text messages which to him supported his belief.
  2. Although the accused decided to leave Lebanon early and return to Australia, he did not inform his daughters or wife that he would be returning early and what date or time he was due back.

Events on 30 March 2015

  1. On the morning of 30 March 2015, the deceased left for work. Nour and Ola went to a nearby OfficeWorks complex to get some printing done for one of Ola’s university assignments. They had breakfast at a nearby café. They returned home and heard the accused having a shower. The accused had landed that morning at about 7.30am on a flight from Dubai. Ola was particularly surprised to find the accused at home because when she had spoken to her uncle, he had told her that the accused was going to spend a couple of nights in Dubai and then continue on to Sydney. She was expecting the accused a couple of days after 30 March 2015. Nour sent a text to her sister Amani to tell her that the accused had arrived back home.
  2. After the accused completed his shower, dressed and returned to the living room, he sat on a couch and had a conversation with Ola and Nour which lasted for some time. Ola’s observation was that the accused seemed uncomfortable and tense. She had not seen him acting like that before. Ola asked the accused about his time in Lebanon. The accused changed the topic of conversation and asked Ola and Nour whether they thought that their mother would ever be unfaithful to him. This was not a topic which he had previously raised with either of them.
  3. Nour observed that the accused was persistent in asking her and her sister about how long they had been in the Bexley townhouse before he noticed them, where they had been that morning and generally requiring them to account for their movements. Nour thought it was odd that the accused would be surprised that they were at home when he was the one who had been overseas, and they lived in the house.
  4. According to Nour the accused asked her and Ola whether the deceased would want to marry someone else if the accused and the deceased were divorced. Nour responded to the accused with words to this effect:
“We have spoken to her so many times; she just wants to be alone. She wants to get divorced and she wants to be alone.”
  1. At this response, the accused took out a Quran and, in front of both of his daughters, he swore that he had always been faithful to the accused. He also suggested to his daughters that he had had many opportunities where he could have been unfaithful to the deceased if he had wanted to, but that he had not taken those opportunities. This conduct shows that at this time the apparent infidelity of the deceased was a matter which deeply troubled the accused. It also shows to me that the accused was attempting to make plain to his daughters that he was not responsible for the breakdown of the marriage.
  2. Both Nour and Ola observed that the accused appeared tired. Nour did not observe that the accused had any problems with his speech or memory. Ola’s observation of the accused during these exchanges was that he appeared tense and stressed.
  3. Nour and Ola then left the house. Nour dropped Ola at university and then went to work at Sydney Airport.
  4. The deceased had lunch with a work colleague, Ms Kapell. Ms Kapell gave evidence of a conversation over lunch which reflected, I am satisfied, the deceased’s views of the accused. She said that the deceased said to her:
“Salwa told me prior to leaving that Haydar had packed his bags and removed his belongings from the villa. Salwa didn’t tell me that the marriage was over, but given what I knew and that they had separated 18 months earlier, I knew that the marriage had ended. I asked her straight up if she was fearful of Haydar and she told me that she wasn’t. I asked this question because she seemed concerned that he had not given the house key back. I asked her if he had ever been physically violent with her and she said ‘no, he was not like that’. She truly saw Haydar as a non-engaging man, a weak person.”
  1. There had been another conversation at an unspecified earlier time between the deceased and Ms Kapell in which the deceased had described the accused’s attitude towards her and which provided the context for the conversation set out in the preceding paragraph. She told Ms Kapell this:
“She told me how all he wanted to do was watch television, but not even movies. All he wanted to do was to watch the news in Arabic. And she hated this is how she learned her mother had been killed. She also told me that Haydar resented her studying. Haydar told her that she did not have the ability to finish the course. Salwa was quite convinced that Haydar had a social phobia. She had started to come out of her shell. She told me that Haydar resented this behaviour.”
  1. It appears that the accused slept for a period of time during the afternoon. At about 3.15pm the accused made a cash withdrawal from a bank. The evidence does not directly reveal the amount of that withdrawal. . However, the sum of $8,800 in cash was found in the accused’s black travel bag, after he had been arrested. It is not unreasonable to infer that most if not all of this cash came from this withdrawal. Detective Taylor, the officer in charge of the investigation who had access to the accused’s banking records, gave evidence that the accused had a bank account and that the accused had “access to some thousands of dollars” which was certainly enough to buy an air ticket to somewhere. He also gave evidence, which was a little confusing, that the accused apparently made both a deposit and a withdrawal on 30 March 2015. It does not seem to me to be important as to precisely what the accused did. Certainly he was observed on CCTV going to the bank and undertaking a transaction in an apparently regular and normal way.
  2. There was no other evidence as to what else the accused did in the course of the afternoon, other than in the accused’s history to a psychiatrist where he said that he bought some food for the house.
  3. At about 6pm, although the evidence suggests that this time is an estimate, the deceased collected Ola from university and drove back to the Bexley townhouse. They arrived home at about 6.30pm and found the accused sitting on a couch in the main living area watching television. Nour was not at home. Ola sat down with the accused on the couch. She thought that the accused was tired.
  4. The deceased went into the kitchen and commenced preparing dinner. During the course of those preparations the deceased asked the accused to go to the garage and get some cooking oil. She did so in a sharp voice. The accused responded “No”. The deceased replied “Well, if you aren’t going to help me then why are you here?” or words to that effect. Ola witnessed this exchange.
  5. After that, Ola heard, but did not see, the accused speaking in Arabic to the deceased. At that time, the accused had to have been either in the kitchen or at the door to the kitchen. He said:
“Do you think I’m spending the night here? I’m not sleeping here tonight, I’m not sleeping here tonight.”
  1. According to Ola, the accused and the deceased began to yell at each other. She thought this was not unusual as often when the accused was angry he would yell. At that stage the deceased was in the kitchen.
  2. The next thing that Ola remembers is hearing the deceased scream. She ran into the kitchen and saw the deceased backed into a corner in the kitchen. She saw that the accused was stabbing her in the back. Ola attempted to put herself between the accused and the deceased, and to push the accused away from the deceased. Whilst that was occurring, the accused continued to stab at the deceased.
  3. Ola remembers feeling a pain in her hands at a time when the physical struggle between the accused and the deceased moved out of the kitchen and into the living area. Ola continued attempting to push the accused off the deceased. She was unsuccessful. The accused continued to attack the deceased. At some point Ola observed that the accused was holding the deceased up against the door by her hair. By reference to the photos of the scene and particularly the location of blood stains on the wall, the deceased was probably at or near the front door, and adjacent to a lounge which had a lot of blood on it.
  4. Ola screamed at the deceased, asking him to stop and asking him what he thought he was doing. Ola screamed for help. She also recalls that at some point during this attack the accused called the deceased a “slut” in Arabic.
  5. Ola continued asking the accused to stop. At one point, she recalled saying to the accused “Dad, what’re you doing? Stop”. She said that he responded “No, no, it’s fine, no it’s fine”.
  6. At another moment, when Ola was screaming for help, she recalled the accused saying to her “What’re you doing, why are you screaming? Stop screaming” as he continued to attack the deceased. Ola heard the deceased saying to the accused “Haydar, I didn’t do anything, I didn’t do anything”. The accused did not respond. He did not stop his attack.
  7. Having unsuccessfully attempted to stop the attack and deter the accused, Ola took hold of the telephone and rang 000. She recounted, and I believe her, that when she did this the accused continued with his stabbing attack and looked at her and said “What’re you doing”. She gave this account (speaking of the time when she went to the telephone), which I accept:
“He kept going, and he looked at me and said ‘what’re you doing?’ and when he saw me, like dialling the phone and he continued and like, he would look back and continue, like I felt like I noticed him pause and then continue and then pause.”
  1. I took from this description that the accused was pausing in the course of the attack to observe Ola making the phone call, and to see or hear if she was connected to the emergency services, and what response was being made to Ola. It appears that the accused ceased the attack and left the house once a connection had been established. Ola’s evidence suggested this, and the contents of the 000 call points to this conclusion.
  2. The 000 phone call made by Ola to the police gives some sense of Ola’s reaction to what had occurred. What she had witnessed was obviously very frightening and distressing. She had seen the deceased brutally attacked and there was obviously a great deal of blood on both the deceased and on Ola.
  3. Ola is recorded on the 000 phone calls as saying that the accused had stabbed the deceased and that he had also stabbed her (Ola). She said that he had run away. She told the 000 operator that the deceased had a cut (or cuts) to her face and was bleeding profusely. She was given advice to assist the deceased in particular ways. Ola said this to the 000 operator:
“My dad came back from Lebanon today, and he just got home, and my mum was in the kitchen, and then he, I don’t know what happened ... he got up and he picked up a knife from somewhere, and he started going crazy. I tried to stop them.”
  1. At another point, Ola told the 000 operator that she did not know where all the cuts on her mother were. It was during that exchange that she discovered that she herself had been wounded. She said that there were so many wounds that she could not attend to them all. Ola said at another point that there was a “just blood everywhere”.
  2. Police were the first to arrive on the scene and attempted first aid and resuscitation on the deceased. Shortly afterwards ambulance officers arrived and attempted to save the deceased’s life. The police and ambulance officers were unsuccessful and shortly after the ambulance officers arrived the deceased died whilst still in the Bexley townhouse.
  3. The accused left the scene in a Mitsubishi Lancer sedan. He drove to his brother’s house, parked the car outside and walked into the house. What occurred there is the subject of evidence from the accused’s brother, Khalil. Khalil is an older brother of the accused who lives with his family nearby in Bexley.
  4. Khalil was not a particularly impressive witness to my observation. I had the clear impression that he only gave evidence of what it was that he thought would assist the accused, his brother. I do not regard his evidence as independent or particularly reliable.
  5. Khalil said that he was at home that night at about 7pm, sitting with some relatives in the backyard of his house. He saw the accused come out of the backdoor of the house and down some stairs towards where he was sitting. He had not expected to see his brother because there had been no prior arrangement about the visit.
  6. Khalil gave this description of the accused:
“When I saw him I immediately felt that I did not recognise him. He was in such a disturbed state that I felt immediate shock at the sight of him.
He looked frail and deranged, with a yellow face. He was shaking uncontrollably and his eyes were bulging out of his face. He did not look like a normal person.
...
He had his whole body bent over, he was shaking uncontrollably and his face was shaking and disturbed as he looked up at me.”
  1. No other witness who was present at Khalil’s house gave evidence about the accused’s appearance. Other hearsay evidence of observations did not contain such descriptions – being limited to the fact that the accused was covered in blood.
  2. I am satisfied that many of his descriptions of the accused exaggerated the state of the accused.
  3. The accused asked to be taken to a hospital. Khalil took him outside to his Toyota Corolla sedan. He helped the accused into the front passenger seat and began driving towards the hospital. Whilst on the way, the accused said to his brother “Take me to the police station”. Khalil asked his brother what was wrong, and the accused responded “I had a fight with my wife”. There was then an angry exchange between Khalil and his brother, which Khalil reported as being most unusual because he had never known his brother to be aggressive.
  4. Khalil took the accused to the Kogarah Police Station and dropped him out the front. He asked if the accused wanted him to accompany him into the Station and was told “Watch out for me in case I collapse”.
  5. Constable Heydon Spurrier was rostered on duty at Kogarah Police Station. He gave evidence that at 19:07 hours on 30 March 2015, the accused walked into the front foyer of Kogarah Police Station. As soon as he (Constable Spurrier) completed a telephone call, he spoke to the accused at the front counter. The accused said “I’ve just had a fight with my wife”. He was shown into the interview room. Constable Spurrier records that he observed that the accused was covered in blood – both of his hands were red in colour and he could not see one bit of skin on the accused’s hands that was not covered in blood. He observed that the accused was wearing a long sleeved shirt which had bloodstains on both sleeves from the wrist to the elbow. He also observed that the accused had dried blood on his face and a small horizontal cut about 3cm in length above his left eyebrow.
  6. Constable Spurrier administered an appropriate caution to the accused, and the accused then volunteered the following: “I just stabbed her. I just stabbed her”. Constable Spurrer asked who he was talking about and the accused responded, “My wife. I just stabbed my wife. I can’t feel anything now. I just got back from Lebanon and we had a fight”.
  7. The accused was then searched and taken to the custody area. No weapon was found on the accused.
  8. Senior Constable Reagan Burnett was the Custody Manager on that shift. He observed the accused as he was being processed into the custody management system. He established that the accused understood English and did not require the services of an interpreter. As is the ordinary course, Senior Constable Burnett asked the accused a series of questions, and made a visual assessment of the accused. He recorded that the accused did not show any signs of severe agitation or aggressiveness, and that he did not appear to be irrational. He made an assessment of the accused’s vulnerability and concluded that the accused did not have any impaired intellectual or physical function. He specifically asked the accused whether he had a history of, or whether he currently had, any mental illness. The accused responded in the negative.
  9. Senior Constable Burnett observed the accused’s clothing. He recorded that there were blood stains on the left hand side of the accused’s shirt near the breast pocket. He recorded that the accused’s trousers had blood stains on the front and back of the lower leg and that the accused had blood on the back of his right hand together with an abrasion, blood on the back of his left hand and also to the cuff area of both arms of the shirt. He observed that the accused was barefoot. There is no reason to doubt the accuracy of his evidence. I accept it as giving accurate observations of the state of the accused.
  10. Shortly after 9pm, the accused was searched and his clothing was removed and placed into exhibit bags. He was provided with a substitute forensic suit. The accused was filmed whilst that process took place – the film is an exhibit and I have viewed it. At the time of the film, the accused did not appear to be in any way disturbed or distressed. To my observation he behaved rationally and was entirely compliant with the requests made of him. I did not observe him making any communication of substance at all.
  11. Also on that evening whilst in custody at the police station, the accused had a number of discussions with his solicitor. At about 9.20pm, the accused was moved to an interview room in order to undergo a formal recorded interview. Again, the video of that interview has been tendered as an exhibit – I have viewed it. The interview is relatively short. Although the accused agreed with the version of events which he gave to Constable Spurrier on his arrival at Kogarah Police Station, he otherwise declined to answer any questions. In so declining, the accused indicated that he had received and was acting upon legal advice.

Other Police Investigations

  1. Further investigations by police assisted in determining what else the accused did after he left the Bexley townhouse where he killed the deceased.
  2. As indicated earlier, the accused drove his Mitsubishi Sedan from the scene. When the car was found and examined, police located a knife on the front passenger seat. That knife has been tested. The testing has revealed that the blood on the knife is that of the deceased. The knife has been tendered in evidence, and I have examined it closely. It measures approximately 210mm, the blade is about 110mm and the handle takes up the balance. The handle appears to be of anodised aluminium and is orange in colour. The knife when tendered appeared to have a bend in the blade. It is also very sharp. It is quite light. When found, it was lying to the rear of the front passenger seat and was in full and plain view. As well, on the front passenger seat there was a tissue which had red blood stains on it. Blood stains were found elsewhere in the car including on the driver’s side door and on the steering wheel. It is plain that the accused drove this vehicle from the scene to his brother’s house.
  3. On the backseat of the car was a medium-sized travel bag apparently on wheels, with a prominent luggage tag from Emirates Airlines. That is the airline with which the accused flew on his return to Australia on that morning. It appeared to be a bag which was of a size that could be carried on as cabin luggage.
  4. Police also examined the boot of the car. In the boot was a larger suitcase which also had an Emirates Airlines baggage tag attached to it. A video was taken during the internal examination of the bag, which I have viewed carefully. The contents of the bag were tidily packed suggesting that some thought and care had been taken, and that the accused had packed it himself. Inside the bag police found a pocket knife with a folding blade. Unfolding the knife required the blade to be released by depressing a spring-loaded button. When the knife was folded it would be capable of being carried conveniently and concealed from public view in a trouser pocket. There is no suggestion that this knife was used in any way by the accused during his attack on the deceased.
  5. Detective Senior Constable Howard went to Khalil’s home on 31 May 2015. She was taken to an upstairs bedroom where Khalil pointed out two bags which, he told police, had been brought to his home on the previous evening by the accused. The first bag was a black coloured ASIC brand small travel bag containing two passports in the name of the accused, one being an Australian passport and the other being a Lebanese passport. It included cash, travel documents in the accused’s name and two Apple iPhones – one was green in colour and the other was white in colour. The police later identified the green iPhone as that normally used by the accused and the white iPhone as that normally used by the deceased. This bag was described by police, perhaps curiously, as a black toiletries bag. Notwithstanding that no toiletries were found in it, both parties used the police description during the trial.
  6. The second bag located in the upstairs bedroom was the deceased’s Cellini brand handbag. It contained a variety of items including a wallet with identification, bankcards, cash, personal papers and a number of other individual items. No mobile telephone was found in the handbag. The handbag, which was tendered, has been examined carefully. It appears to be in very good condition. The lining of it is a light satin type of material which does not show any signs of any wear or damage. In particular, there was no sign in the lining or anywhere else, or on the outside of the handbag, of any incisions or cuts being made by a knife.

Ms Ola Haydar

  1. Ola was taken by ambulance to the St George Hospital. She was seen by Dr Katie Bluett. Dr Bluett observed that on her left hand there was a 2cm superficial laceration through the skin on the palmar aspect of the thumb. On Ola’s right hand she observed that the injuries were considerably more serious. There was an inverted “V” shaped laceration over the back of the proximal phalanx of the index finger measuring about 1.5cm on each arm of the “V”. This cut exposed the extensor tendons. There was also a 7mm linear laceration over the lateral aspect of the back of the proximal phalanx of the middle finger. Both of the lacerations on the right hand extended through the skin. An x-ray did not show any abnormality. Ola’s wounds were cleaned and dressed. Her right hand was immobilised in a plaster splint. She was given antibiotics and analgesia.
  2. Because Ola’s hand needed surgical exploration and repair in an operating theatre, she was referred to the Sydney Hospital Specialist Hand Clinic where that occurred in the following days.

Post Mortem Examination

  1. A post mortem examination was undertaken of the deceased’s body by Dr Istvan Szentmariay. Dr Szentmariay is a special forensic pathologist. He was not required for cross-examination. His report was not in any way disputed. I accept entirely what he has said.
  2. The pathologist found that the cause of death was multiple stab wounds. The mechanism of that cause of death was noted to be significant blood loss from these stab wounds, and acute respiratory compromise due to defects of the integrity of the chest wall caused by the stab wounds.
  3. The pathologist undertook an external examination which showed a “heavily blood soaked upper body” with a number of stab wounds present over the body. In addition, there were a number of defensive-type sharp force injuries on both arms, though more pronounced on the left side. Several small surgical scars were also noted.
  4. In the post-mortem report a summary of the wounds was given. The pathologist found three stab wounds (one from the back, two from the front) on the right side of the deceased’s torso which subsequently entered the chest cavity and underlying lung, causing massive haemorrhage and the accumulation of 800mL of blood in the right side of the chest. Two stab wounds which entered the left side of the chest (one from the back and one from the front) and subsequently the lungs were also noted. The lower of these two wounds, which was located on the left hemithorax, went through the diaphragm and the parenchyma of the spleen with 100mL of blood found to be present in the left hemithorax and less than 50mL in the abdomen. The second stab wound, which was in the middle of the front chest, penetrated the chest cavity and injured the superior vena cava, an artery which delivers deoxygenated blood to the right atrium of the heart.
  5. The pathologist catalogued the following wounds, in addition to the serious wounds which I later describe:
  6. As well, the pathologist described a series of wounds which appear to me to have been inflicted as the deceased held her arms up to protect herself from the attack. They are wounds which can be readily and conveniently described as “defensive wounds”. They include:
  7. The pathologist also noted that there were 12 superficial cuts and abrasions present on the body. He noted other injuries as well which were much less serious.
  8. The ordinary routine pathology tests were undertaken. Toxicology of blood and urine showed no alcohol, commonly used medications or illicit drugs in the deceased’s system.
  9. I accept the finding of the pathologist as to the cause of death, the nature, type and location of the stab wounds, and the other injuries. As counsel for the accused accepted in submissions, when combined with the contemporaneous account of events, the injuries evidence a ferocious, sustained and persistent attack. I also conclude that the wounds evidence the use of force on the part of the accused.
  10. It will be necessary to consider some particular wounds in greater detail in due course.

Psychiatric Opinions

  1. Expert evidence was also given about the accused by three psychiatrists, Dr Nielssen, Dr Allnutt and Dr Westmore. It was accepted by the Crown and the accused that all three were appropriately qualified and suitably experienced to express an opinion about the psychiatric state of the accused at the relevant time, and about the concepts embodied in the impairment defence. I also accept that.
  2. Although there was a large measure of agreement between these three experts, it will be necessary to examine their views when they differ and, by reference to all of the evidence including their opinions, to come to a view as to which opinion I accept.
  3. It is also necessary to note that each of the psychiatric opinions is largely based on the history given by the accused to each psychiatrist in the course of a consultation between the accused and the psychiatrist.
  4. The evidence given by the psychiatrists, either in their reports or orally about the history obtained from the accused, is hearsay evidence. It was evidence of an account given out of court by the accused as to his recollection of events relevant to his impairment and his offence.
  5. The Crown submitted that because the evidence was hearsay, I should give myself a direction of the kind set out in s 165(2) of the Evidence Act 1995, namely, that the evidence may be unreliable because it was not given in the witness box and it was not subject to being tested by cross-examination. The Crown submitted that I should direct myself that there was a need for caution to be exercised in determining whether to accept the evidence, and in the weight to be given to it.
  6. Counsel for the accused submitted that such a direction was not warranted in the particular circumstances of this case. Counsel accepted that, even without the direction sought by the Crown, I should remind myself that the reliability of the accused’s history given to the psychiatrists and the weight to be accorded to that history, were matters for me to consider and weigh up in light of all of the other evidence, including the surrounding circumstances and the probability of what in fact occurred.
  7. It follows that the reliability of these histories and weight to be given to them remains a live issue which is to be determined by me. In light of that concession by counsel for the accused, and in light of the fact that this is a judge alone trial, I decline to give myself the direction sought by the Crown. In any event, the warning described in s 165(2) of the Evidence Act applies, in its terms, only to a trial before a jury.
  8. It is convenient now to review the evidence of the psychiatrists.
  9. Dr Olav Nielssen was the first specialist psychiatrist to speak with and perform an examination on the accused. He interviewed the accused at the Metropolitan Reception and Remand Centre (“MRRC”) on 7 April 2015. He followed this up with an audio visual link consultation when the accused was at the Long Bay Correctional Centre on 13 January 2016.
  10. Based on those interviews and other documents with which he was provided, Dr Nielssen formed an opinion which he expressed in a report dated 14 January 2016.
  11. It is appropriate to record some of the particular features of the history given by the accused to Dr Nielssen. They are these:
“At this moment I took a picture of one of the messages and made the decision not to live with this lady who pretends to be an angel any more”;
(b) the accused said that he did not want to lose his wife and offered to buy her a ticket to come with him on the trip, but she declined;
(c) the accused gave this history to Dr Nielssen about a discussion with his wife about the rent. He said:
“... that she then asked him for rent for the period he would be away, and he told her ‘I am not paying because when I come back I will be living somewhere else’ ”;
(d) the accused said that whilst he was in Lebanon he lost 10 or 11kg in weight because he did not feel like eating and had to force himself to eat;
(e) the accused told Dr Nielssen that he had had very little sleep and had whole nights with no sleep at all.
  1. With respect to the history of the particular events immediately before he stabbed the deceased, the accused gave this version to Dr Nielssen:
“He said that he took a taxi from the airport to the family home and said that he was waiting there until his wife arrived home, as he wanted to take her mobile phone and leave. He said:
‘I wanted to show my daughters what their mother was doing ... this mum who always gave lectures on how to be good would end up doing these things.’
He said:
“When she arrived we said hello ... she had her bag on the table ... we started doing something to eat ... I did not have my glasses on ... I did not find her mobile and found a knife in the bag ... I did not have a chance to keep searching ... I left the phone in the bag ... I was sitting on the couch, she said can you go to the garage to get some oil, and I told her I was tired and I told her where it should be ... she said if you don’t want to go and get them, you can get out of here now ... I do not want my daughter to hear what I wanted to say ... I ask this wife ‘are you following someone’s instructions’ ... she said ‘yes, and it has nothing to do with you’ and she hit me with her elbow ... I do not know what happened after that ... I remember nothing from that time ... all I remember is I am puffing ... and I knew that the daughter is there ... that is all I remember.”
  1. The accused indicated that he had no memory at all of harming his wife or his daughter. I accept that in many cases involving violence of the kind which occurred here, an accused does not have a memory of what occurred that they are capable of articulating. I have not concluded that the accused in fact has a memory of these facts and circumstances which he intentionally withheld from the psychiatrists.
  2. The accused’s further history included that he denied to Dr Nielssen contemplating hurting his wife beforehand and said:
“Not at all ... wholeheartedly I wanted to save her ... she was playing the role of someone else”.
  1. The accused denied feeling angry towards his wife and told Dr Nielssen that in the time he spent overseas, he became convinced that he should move elsewhere to live. He said he had made arrangements with his real estate agent to ask the tenants to leave his apartment so he could move into it. He then said this to Dr Nielssen:
“‘I wanted to have my daughters with me if I leave ... I wanted to have the telephone to show the girls what’s in there.”
  1. This was a reference to the deceased’s mobile telephone and the text messages on it which he had previously read.
  2. Dr Nielssen diagnosed the accused as having a depressive illness. He said that that diagnosis was made on the basis of the history which he received of a syndrome of depression which reportedly first emerged after the altercation between the deceased and her son. Dr Nielssen thought that the depressive illness was exacerbated after the accused formed the view that his wife was being unfaithful to him. Dr Nielssen also found that, whilst the accused was overseas, both his lack of sleep and his interrupted sleep, together with his loss of appetite, his significant weight loss, his constant rumination on negative themes, and his impaired mental performance, were all demonstrative of a significant depressive illness.
  3. Dr Nielssen went on to say this:
“Mr Haydar would be able to raise the defence of substantial impairment by abnormality of mind. He had an underlying condition in the form of a depressive illness that had been apparent to Mr Haydar’s brother from the time of the dispute between his wife and his son, which was also around the time that the marriage began to fail. His state of depression became more severe after it became clear that the marriage was over, shortly before Mr Haydar left for Lebanon. From the information that is available, I believe at the time of the offence Mr Haydar was affected by an abnormality of mind arising from his underlying condition, that affected his perception of the events and his ability to control his actions.
Mr Haydar’s perception of the events was affected by the negative appraisal of his situation and the impairment in intellectual function arising from a state of severe depression. ...
From the information that is available, I believe that Mr Haydar’s abnormality of mind at the time of the offence significantly affected his capacity for self-control. There was no history of any previous physical violence, apart from the single pushing episode some years earlier. The nature of the offence itself, including that it was committed on the spur of the moment without premeditation and also resulted in the injury to his daughter who attempted to intervene, is consistent with impairment in Mr Haydar’s ability to control his actions.”
  1. In his evidence, Dr Nielssen was asked whether the provision to him of some additional factual material relating to those details about the relationship between the deceased and the accused caused him to change his mind. He said that it did not.
  2. Dr Nielssen confirmed orally that he was of the opinion that the psychiatric condition of the accused, namely depression, substantially impaired his selfcontrol.
  3. In cross-examination, Dr Nielssen agreed that the two factors principally responsible for the exacerbation of the accused’s depression during the time he was in Lebanon prior to his attack on his wife, were the accused’s belief that his wife was being unfaithful and his knowledge that upon his return to Australia he would be moving out of the Bexley townhouse to live apart from her.
  4. Dr Nielssen also agreed that, based on the history he was given, and in particular the use by the accused of the Arabic word for “slut” in the course of his attack on the deceased, the attack was based on the accused’s genuine, and not psychotic, belief that his wife was unfaithful. He had earlier agreed that such a belief (in the unfaithfulness of the deceased) could lead to jealousy which might result in behaviour of an unexpected kind.
  5. Dr Bruce Westmore, who is also a specialist forensic psychiatrist, saw the accused at the Long Bay Prison Hospital on 21 March 2016. He prepared a report dated 30 March 2016, which was tendered.
  6. The history obtained by Dr Westmore was consistent with that obtained by Dr Nielssen. There were some additional features. The accused told Dr Westmore that he arrived back in Australia and left suitcases in his car. He said that he did not have any intention of staying at home that night.
  7. The accused then gave this history:
“In the evening, my youngest daughter and her mother came back home. My intention was, all I wanted was to take her mobile and leave. I wanted to show my daughters (and tell them) your mother, who pretends to be an angel, look what she is doing and she is about to be a grandmother now.
...
Her (wife’s) bag was on the table in a dark spot. I put my hand into (the bag) to feel if the telephone is there. I found a knife and I took the knife and put it quickly in my pocket. I moved my hand in the bag to feel the mobile. There were some papers. I couldn’t find the phone and I didn’t want to stay there longer.
...
She (wife) asked me, she wanted to do some dinner. She asked me to go to the garage and get some oil. I said, as far as I know there is no oil left there. She said, if you don’t want to get the oil, get out of here, we don’t need you here. I said to her, you (wife) are doing what someone else is asking you to do, and she knew exactly what I meant. When I had told her that, I could tell (she knew what I was saying). She screamed, she hit me with her elbow on my chest. After that I cannot remember anything. “
  1. The accused denied to Dr Westmore that he had been jealous of his wife, telling him (Dr Westmore) that he thought that she used to try and make him feel that she was jealous. However, he did tell Dr Westmore that he was angry about his wife’s infidelity.
  2. Dr Westmore expressed this conclusion:
“Psychiatric Diagnostic Issues
Based on Mr Haydar’s history and supported to some degree by his clinical presentation, my provisional diagnosis is that Mr Haydar developed a major depressive disorder in the weeks and possibly months leading up to the index offence. I would agree with Dr Nielssen when he reports that Mr Haydar’s mood state appears to have significantly deteriorated just prior to his trip to Lebanon and certainly while away he describes having significant problems not only with his mood but with his sleep patterns, his appetite and weight. There is reported to have been a very significant weight loss over a short period of time. He also describes a loss of energy and an absent libido.”
  1. Dr Westmore also expressed some views about Mr Haydar’s psychiatric state after the incident and whilst in custody.
  2. He concluded in this way:
“On the balance of probability, Mr Haydar was in my opinion, suffering from a major depressive disorder at the time the offending behaviour occurred. Like Dr Nielssen, ... he was, from a psychiatric perspective suffering from an abnormality of mind (a major depressive disorder) which would, on the balance of probability, have impaired his ability to control his actions at the relevant time.”
  1. He went on to express this conclusion:
“I do believe that Mr Haydar could raise the defence of substantial impairment on the basis that he was suffering from an abnormality of mind (major depressive disorder) at the time the offending behaviour occurred. I do agree that his ability to control his actions was impaired as a result of his major depressive disorder. It will, I understand, be a matter for the Court to determine whether his capacity to control his behaviour was substantially impaired.”
  1. In oral evidence, Dr Westmore said that he was of the opinion that the accused’s ability to control himself was substantially impaired by his depression. He described the depression as playing a “pivotal” role in the events which occurred.
  2. Dr Westmore concluded that the accused’s depression at the time he attacked the deceased would properly be described as moderate to severe. He rejected the description of the accused’s condition as being mild to moderate on the basis of the account the accused gave in his history of the “... disturbance of his biological functions ...” – evidence which I took to include the lack of sleep and loss of weight which, according to the accused, occurred whilst he was in Lebanon.
  3. In cross-examination, Dr Westmore accepted the following matters, again based on what he had been told:
  4. In re-examination, Dr Westmore expressed the opinion that the actions of the accused after he left the Bexley townhouse were more consistent with a person whose conduct occurred through a loss of control rather than premeditation or pre-planning.
  5. Dr Stephen Allnutt saw the accused a short time after he was seen by Dr Westmore. Dr Allnutt was retained by the prosecution.
  6. The accused gave a more detailed history to Dr Allnutt about his time in Lebanon than he gave to the other two psychiatrists. Dr Allnutt recorded this history:
“By the time [the accused] left Lebanon he was depressed. He had poor sleep and was sleeping two hours a night, waking up all the time and having difficulty getting back to sleep. He said ‘I hardly slept in Lebanon’. He lost about 10 kg due to reduced appetite. His energy levels were ‘weak’ and he had reduced motivation. He couldn’t concentrate and if he read something he couldn’t recall what he had read. He was unable to focus on conversations and didn’t want to sit and talk to anyone. He had low self-esteem and thought of himself as a ‘complete failure’. He had lost confidence in himself and had thoughts such as ‘This is the life I had for 28 years. My son is in jail. She has time to do these things and I was in a different world’. He was thinking about his son and his two girls who would be devastated by the knowledge that their mother was having an affair. He had lost interest in things and found pleasure in ‘nothing’. ”
  1. The accused told Dr Allnutt that during the course of the day on 30 March 2015, he withdrew money from the bank so as to enable him to rent some accommodation. He gave Dr Allnutt this account of the events leading up to the death of the deceased:
“His wife asked him to go out to the garage and there was some discussion about him getting oil. He said he did not think there was oil. In the back of his mind he was thinking the only thing he wanted to do was to get her mobile, then leave, and at an opportune moment show his daughters the proof (on the phone – if she denied the affair).
He said that when she came home she had put her work bag on the table. He went to the bag to check for her phone and instead found a knife. He took the knife and put it in his pocket. He said putting it in his pocket was an automatic reaction and made reference to using the knife to peel fruit. He recalled she asked him to leave because he didn’t want to help her.
Then he came near her and said ‘You are following the instructions of someone’. He said that from the way she looked at him, she knew what he meant. She elbowed him in the chest and he had no recollection of events after that moment.”
  1. Dr Allnutt expressed this opinion about the accused’s mental state at the time of the killing:
“The alleged offending occurred in the evening at his home at a time when his daughter was present. It involved the use of a knife and the victim was his wife of 26 years. His description of the offence was that it was not pre-planned but was impulsive. He had retrieved a knife from his wife’s bag just prior to the alleged offence. It was preceded by an argument or discussion in relation to him helping or not helping his wife on a background of a perception he held that his wife was having an affair prior to him going to Lebanon, and was acting on the instructions of someone (presumably her lover) just prior to the index offence. The offending behaviour resulted in the death of his wife and injury to his daughter.”
  1. Dr Allnutt went on to consider the matter further, and concluded that the depressive symptoms active at the material time were consistent with an underlying condition which could cause an abnormality of mind. Dr Allnutt then said this:
“Having regard to the information, I do not believe that accused was substantially impaired in his capacity to understand events. (He was capable of understanding what a knife was and had an understanding of what the consequences of using a knife might be. His conclusion that his wife was having an affair was erroneous but there was an understandable basis for him to hold this belief, it was not a delusional belief. However once suspicious he became ruminative about this and this likely aggravated his depression and vulnerability to emotionality).
In my view, he was not substantially impaired to the extent that he did not know right from wrong.
If the Court concludes (based on the evidence) that the alleged offending behaviour was not pre-meditated but constituted a loss of control – then the issue in this case is whether or not he lost capacity to control his actions due to his ‘underlying condition’. ...
I believe it is unlikely that his depression and anxiety was of such a severity that he was substantially impaired in his capacity to control his actions in the absence of a trigger but, having regard to all preceding events and his ruminative preoccupation with his wife’s infidelity at the material time of the alleged offence, he was vulnerable to reacting emotionally to triggers such as perceived rejection or evidence of infidelity. His depression would have aggravated his vulnerability to emotional reaction under these sorts of circumstances. While his actions at the material time of the alleged offence could have occurred in the absence of a depression (for example, driven purely by emotions such as jealousy, humiliation or resentment) the presence of a depression cannot be disregarded because depression is prone to aggravate these sorts of emotions. On this basis he has a defence of substantial impairment open to him.”
  1. Dr Allnutt, in oral evidence, said that the accused’s depression was in the mild to moderate range. He reached this conclusion, he said, because although the accused had a relatively moderate to high loading of symptoms, he only had a moderate to low level of impairment of his functioning.
  2. In cross-examination, Dr Allnutt agreed with senior counsel for the accused that the conduct of the accused after he left the Bexley townhouse was consistent with his having lost his self-control rather than any premeditation or prior planning, but he agreed that this conclusion depended for its validity upon the length of time available for the pre-planning.
  3. Dr Allnutt also made it plain that whilst his opinion was that the accused was suffering, by reason of his depression, from an impairment of his ability to control himself, he was not expressing any opinion as to whether the accused did in fact lose control of himself when he attacked the deceased.

Accuracy and Reliability of History

  1. Although, as I have indicated above, a great deal of the factual material was not in dispute in the trial, there were some questions raised about the accuracy of some parts of the history given by the accused to the psychiatrists. As is apparent from the review of their evidence, the psychiatrists relied upon the accuracy of those histories.
  2. The first contested question related to whether or not in the two weeks or so the accused was in Lebanon, he lost 10 kg of weight; the second contested question of fact was the provenance of the knife which was the weapon used to kill the deceased; and the third contested question was the time at which the accused accessed, and took possession of, the deceased’s mobile telephone.
  3. It is convenient to deal with each of these separately.

Loss of 10kg of Weight

  1. The accused gave a history to each of the psychiatrists that whilst he was in Lebanon, he lost about 10 kg in weight.
  2. He was accompanied by his brother, Abbas, whilst he was in Lebanon. Abbas gave evidence, which was unchallenged, that he and the accused travelled to Lebanon together, spent 95% of the time there together and that he farewelled the accused as he got onto the bus taking him to the airport to return home. Although Abbas observed that the accused “... was not being social ...” he said nothing at all in his statement about observing any weight loss by the accused whilst they were in Lebanon. In evidence he was unable to say whether he had in fact observed that the accused had actually lost weight whilst they were in Lebanon. He did say that the accused did not eat very much whilst they were in Lebanon.
  3. Upon the accused’s return to Sydney, his two daughters saw him at the Bexley townhouse. They had both seen him in the days leading up to his departure to Lebanon: that is, a fortnight or so earlier. Ola gave evidence about the accused’s appearance on that morning. She did not describe any apparent or obvious weight loss, although she was in close proximity to her father that morning and, again, in the evening of 30 March 2015.
  4. Nour also gave evidence that she saw her father on the morning of his return to Sydney. In their conversation, she said, her father reported to her that he had not slept whilst in Lebanon, but had said nothing about any weight loss during that period. The entire conversation occupied a reasonable length of time. Nour initially gave no evidence of observing her father as having lost any weight. When recalled, she said that she had not observed any difference in her father’s appearance between when he went to Lebanon and when he returned home. Although her evidence was challenged on this aspect, I accept it. It accords with the bulk of the other evidence.
  5. The Crown tendered a video recording taken on the evening of 30 March 2015 of a procedure where the accused was required to undress himself and hand his clothes to a police officer so that they could be forensically preserved and examined. Although this is not a particularly scientific observation, to a reasonable observing eye during that process, the trousers of the accused were well-fitted and there was no obvious looseness around the waistband which would have been expected if there had been a sudden loss of weight of 10kg, which I estimate would have been at least 10% of the accused’s body weight.
  6. On any view having regard to the accused’s size before going to Lebanon, the loss of 10kg in two weeks would be a significant and substantial weight loss which I would expect to have been obvious to his brother and to his two daughters. None of them initially gave evidence of any such weight loss, and it was not suggested to them in cross-examination that they had observed any such weight loss.
  7. I have concluded that I am unable to accept the history that the accused gave of losing 10kg in weight during his time in Lebanon as being reliable. Whilst it is possible that he lost some weight, I do not accept that it was of such significance as to be taken into account as a meaningful symptom of the mental state of the accused at the time of the killing.
  8. However, there are other indicia established by the evidence which can be taken into account as part of the constellation of symptoms from which he was suffering which point to the nature and severity of his depressive illness. Accordingly, my rejection of the history of 10kg of weight loss does not stand in the way of a conclusion that the accused was suffering from depression.
  9. The effect of my conclusion on this issue is only that this part of the histories is unreliable, and that I must exercise caution when considering the other parts of the histories which are alleged.

Provenance of the Knife

  1. The Crown case abundantly proves, and the accused accepted, that the knife found in the accused’s car, which has an orange handle, was used by the accused to stab the deceased.
  2. It has the following features of which, from photographs and a careful examination of the actual knife, I am satisfied:
  3. The only evidence that the knife was brought to the Bexley townhouse by being carried in the deceased’s handbag was that contained in the history given by the accused to the psychiatrists. The accused told each of the psychiatrists that when he was at the Bexley townhouse on the evening of 30 March 2015, he went to the deceased’s handbag to search for and locate the deceased’s mobile telephone, intending to remove it and keep it himself. He told Dr Nielssen that:
“I put my hand into [the bag] to feel if the telephone is there. I found a knife and I took the knife and put it quickly in my pocket.”
  1. He gave Dr Allnutt a very similar history, adding that:
“... putting [the knife] in his pocket was an automatic reaction and made reference to using the knife to peel fruit.”
  1. He gave Dr Westmore a similar history to that given to the other two psychiatrists.
  2. It is important to assess the reliability of these histories about the knife being carried in the deceased’s handbag because it directly affects his account of the events leading up to the attack on the deceased. In assessing the reliability, I need to take into account the fact of the accused’s good character and how that might support his general credibility. I give it appropriate weight.
  3. According to the unchallenged evidence of each of the three daughters of the accused and the deceased, they did not recognise the knife when it was shown to them prior to giving evidence. They said that they had not seen it before. They said that it did not form part of a set of knives used or stored in the kitchen in the Bexley townhouse. They said that it did not come from the townhouse. I accept this evidence. The knife has a distinctive appearance which, I am satisfied, would have been readily observed if it had been kept in the kitchen of the Bexley townhouse.
  4. According to Amani’s unchallenged evidence, the only knife that her mother was accustomed, on occasion, to carry with her in her handbag was a small one with the blade covered by a plastic lid “...the kind that comes with a lunch box and you take to work to cut an apple with”. She estimated the blade length of such a knife to be about 5 or 6cm. I accept that evidence. The description which she gave of that small knife is not capable of describing the knife used in the killing by the accused.
  5. Nour gave unchallenged evidence to a similar effect: that she was aware that, together with other cutlery, her mother would carry a small knife with a coloured handle and a cap, and that she would take it with her lunchbox to work. She estimated the whole length of that knife to be “fairly small ... about ... the size of my palm” which she thought was about 7cm or so. I accept that evidence. Again I am well satisfied from her description that the knife used by the accused is not of the kind or type which Nour said her mother carried in her handbag from time to time.
  6. Amani also gave this unchallenged evidence, which I accept, talking of the implicated knife:
“She (referring to her mother) would never have carried a knife like that in her bag. She kept her things in nice condition. It would be very weird for her to carry a large knife loosely in her bag. She had nice bags, nice items. I can’t imagine that at all.”
  1. This evidence pointed to the unlikelihood that the knife was carried by the deceased in her handbag in an unprotected way, as was suggested by the history that the accused gave to all three psychiatrists.
  2. I have examined the handbag used by the deceased on the day she was killed. It was the handbag taken by the accused to the house of his brother, Khalil, and left there until the police recovered it on the following day. The outside of the handbag was not damaged in any way. It was in good condition and accorded with Amani’s description of her mother’s handbags as being nice bags. It was also in good condition. It was obvious from a comparison between the knife and the handbag, that the knife was capable of fitting wholly within the handbag. However, a careful examination of the satin-like lining of the handbag did not reveal any cuts or other damage which may have been caused by the knife. There was no evidence of any scientific examination establishing such facts.
  3. Having regard to the sharpness of the knife, and the nature of the lining material, had the knife been carried loosely in the handbag, and not protected in any way, I would have expected that some visible damage to the lining of the handbag would have occurred, or else to other items in the handbag. Particularly, would that be so if the knife was kept in the handbag for the whole of a day, or perhaps over a number of days.
  4. As well, I have concluded that it would be potentially very dangerous for the deceased to carry the unprotected and unsecured knife in the handbag as one of a number of other items in the handbag. Photos were tendered which show the items which were carried by the deceased in that handbag. These items included the deceased’s mobile phone, a wallet, medical paperwork, car keys and various documents. If the deceased (or anyone else) had placed their hand in the handbag to find or retrieve any item, there would have been a real risk that they would cut themselves on the unprotected blade of the knife if it were in the handbag. I think it most unlikely that the deceased would have allowed such danger to exist by placing the unprotected knife in her handbag.
  5. There is no evidence of any particular reason why the deceased needed to, or wanted to, carry such a knife: for example, for her own protection. It was significantly bigger than, and not of the type and style of, the knife described as being the one that she carried to use with her lunch box.
  6. No use for a knife of that size or kind was identified in the evidence except for a suggestion that it appeared to be a knife which could be used to slice or peel fruit. If that was its use, it is unlikely to have been carried in the deceased’s handbag. Investigations undertaken by the police after the killing were unable to establish that the accused had purchased the knife on 30 March 2015 from any shop in the local area including from a large nearby shopping centre. Forensic examination of the knife did not reveal any recoverable fingerprints. DNA tests identified a profile of the blood on the knife as being strongly indicative that it was the deceased’s blood. I am satisfied that it was.
  7. Senior counsel for the accused submitted that I would be persuaded that the history given in this respect by the accused was accurate, and that the evidence supported that conclusion. In particular, he drew attention to:
  8. I do not accept these submissions of senior counsel for the accused. The investigations undertaken by police in the local area to identify shops where the knife was bought were necessarily limited. The accused had a motor car, and therefore there is no reason to geographically limit where he might have gone to purchase the knife to the local area. The proposition also contains the assumption that the accused did not have the knife in his belongings which were packed up in the garage of the Bexley townhouse. I accept that there was no identifiable debit entry on any credit card or in the accused’s bank account. The sum withdrawn from the accused’s bank account was not actually identified in the evidence, so it is not possible to conclude that the sum of cash found ($8,800) was all that was withdrawn from the accused’s bank account.
  9. But, even if the cash sum coincided with the withdrawal, this submission was based on the assumption that this cash was the only cash available to the accused on 30 March 2015. But this was not so. The police DVD of a search undertaken by Detective Taylor, the officer in charge of the investigation, of the accused’s car which was tendered in the accused’s case, reveals that the accused had cash ($130) folded up in a soft glasses case in the glove box of the car, next to his taxi driver’s licence. The money was not seized by police nor otherwise recorded. Perhaps that is why senior counsel did not refer to it. I do not accept as a matter of fact that the accused did not have cash to purchase the knife on the day he killed the deceased.
  10. The third and fourth matters can be considered together. I accept that it is most improbable that the accused carried the knife with him from Lebanon in his cabin luggage. But he could have done so in his check-in luggage. The police recovered a folding knife from his check-in luggage which the accused’s counsel accepted he had carried from Lebanon. A careful observation of the police search video satisfies me that whilst the clothes in the larger travel suitcase were neatly and tidily packed, the bag was not full to overflowing and there was sufficient space for the knife to be placed in the bag and to be removed easily without disturbing the neatly packed clothing. There were also easily accessible pockets in the lid of the case into which the knife could have been placed and easily accessed. I am not satisfied that the accused could not have brought the knife back from Lebanon with him in his check-in luggage.
  11. Finally, the accused submitted that there was no obvious reason why he would have brought the knife into the Bexley townhouse on that particular evening. I accept this submission. However, I do not regard the absence of an identified reason as telling against a finding that the accused did so. Offences are proved without an identifiable motive. The actions of humans cannot always be logically explained. This is no different.
  12. Accordingly, I reject the accused’s submissions that the evidence shows that he did not bring the knife into the Bexley townhouse.
  13. From this evidence, I have reached the following findings of fact:
  14. In rejecting the accused’s account, I am satisfied that it is an untrue account, which cannot be explained by the effects of any amnesic condition after the events. As well, it provides a significant reason to doubt the reliability of the accused’s history unless it is corroborated by other independent evidence.

Access to Mobile Phone

  1. According to the history given to the psychiatrists by the accused, he attempted unsuccessfully prior to killing the deceased to find her mobile telephone in, and remove it from, her handbag. He said that he intended to keep it and show the contents of it to his daughters. There is a significant question about the truthfulness and reliability of this aspect of the history given by the accused.
  2. The accused also gave a history to Dr Nielssen, but not to the other two psychiatrists, that as he was leaving the Bexley townhouse, he picked up his wife’s handbag which was near the front door and took it with him as he drove to his brother’s house. That was where the police found it. It follows that the accused must have carried it there.
  3. At the time the police obtained the deceased’s handbag from Khalil’s house, the mobile telephone was not in it. Rather, it was inside the black travel bag which apparently belonged to the accused and which contained a number of his items, including cash which he had withdrawn on that day, his two passports, various travel documents, a boarding pass and his mobile telephone.
  4. It follows that at some point in time the accused must have removed the deceased’s mobile telephone from her handbag and placed it in his black travel bag. The question is when did that transfer take place?
  5. According to the history given by the accused, the transfer must have happened after he had killed the deceased, and after he had carried the handbag from the Bexley townhouse, because he says he could not find the phone before the attack, and Ola Haydar did not see the accused carry out the transfer in her presence after the attack. At all times after the attack, and there is abundant evidence which persuades me of this, the accused’s hands were covered in the deceased’s blood. His car contained bloodstains on the steering wheel where he placed his hands when driving the car to his brother’s house. The inside door handle of the driver’s door of the car also contained bloodstains which, I am satisfied, would have come from the accused using his hands to close that door before driving off. Constable Spurrier said that when the accused walked into the Kogarah Police Station, he observed that the accused’s hands were covered in blood and that he “... could not see one bit of skin on the accused’s hands that was not covered in red blood”.
  6. In those circumstances, it would be surprising if the accused had transferred the deceased’s mobile telephone from her handbag to his black bag after he left the Bexley townhouse without blood being transferred from his hands onto the deceased’s mobile telephone. Yet, there is no evidence that any blood was discovered on the mobile telephone when it was found. In fact, the forensic tests undertaken by police did not discover any blood on the phone at all.
  7. The photograph of the mobile telephone does not disclose the presence of any obvious blood stains.
  8. As well, there is no suggestion that the inside of the deceased’s handbag contained any blood stains that would have been likely to happen, in my view, if the accused had placed his bloodstained hands inside the bag in order to remove the mobile telephone. As well, blood would have been transferred onto one or more of the other items in the handbag. There is no evidence that this was so.
  9. There is no evidence that anyone else transferred the telephone from the deceased’s handbag to the accused’s bag. It is theoretically possible that one of the occupants, or a visitor to Khalil’s house may have done so, but there is no suggestion that this is so, and since no-one there knew of, or understood the significance of, the phone to the accused and therefore had any reason to move the phone, I regard this possibility as being manifestly unlikely and able to be rejected.
  10. I do not accept that the accused removed the deceased’s telephone at any time after he had killed her. I have concluded that he must have done so before he killed the deceased. I do not accept the accused’s history that he looked for the mobile telephone and did not find it, and inferentially that he did not take it into his possession before he killed his wife. This history is incorrect and something which I simply do not believe.
  11. This finding does not sit easily with the fact that the accused carried the deceased’s handbag from the townhouse when he left. If he had removed the mobile phone prior to leaving, there seems little if any reason for him to have taken the deceased’s handbag with him. However, that may simply be an irrational action particularly having regard to what had just occurred. This conduct does not dissuade me from the conclusion which I have reached because I regard the evidence in support of the conclusion as outweighing the evidence which stands against it.
  12. The consequence of my finding that the accused took the deceased’s phone from her handbag and placed it in his black travel bag is significant, particularly when combined with my conclusion that the accused did not find the knife in his wife’s handbag.
  13. First, it leads me to conclude that the accused is an unreliable historian who has given a partly untruthful account of the events leading up to his attack on his wife. His account of these events can only be regarded as truthful if they are corroborated by independent evidence. Secondly, it suggests that the attack by the accused on the deceased was carried out shortly after he had taken possession of the one item which he regarded as being real proof of his wife’s infidelity, namely the messages on her mobile phone. It leads me to conclude that this is what motivated him to get up from his seat on the lounge and walk to the kitchen to confront his wife on that subject and accuse her of “... following the instructions of someone ...” (accused history to Dr Allnutt), rather than losing control of himself because the deceased had told him to leave because he would not help around the house.

Count 1: Murder – Proof Beyond Reasonable Doubt of the Essential Elements

  1. It is necessary now to determine whether the Crown has proved beyond reasonable doubt each of the essential elements of each of the offences with which the accused is charged. The first count is murder.
  2. I commence this analysis by reminding myself that even if the Crown has made out each of the essential elements of murder beyond reasonable doubt, before a verdict of guilty of Count 1 can be entered, it will be necessary to consider the impairment defence pursuant to s 23A of the Crimes Act.
  3. The first essential element of the count of murder is that Ms Salwa Haydar has died. There is no dispute about this. The evidence of ambulance officer Craig Ruddiman, which was unchallenged, was that Ms Haydar died shortly after 7pm on 30 March 2015 at the Bexley townhouse. The accused accepts that this is so.
  4. Accordingly, I am satisfied beyond reasonable doubt that the Crown has proved this essential element of the first count.
  5. The second essential element of the count of murder is that it was the act of the accused that caused Salwa Haydar’s death. The unchallenged evidence of Ola was that she saw the accused stabbing Salwa Haydar in a violent and prolonged attack. The evidence of those who attending the scene, as well as Ola, was that the deceased was very seriously wounded by the multiple stab wounds inflicted upon her by the accused. The unchallenged evidence of the forensic pathologist, Istvan Szentmariay, was that the cause of deceased’s death was multiple stab wounds. The accused admitted to Constable Spurrier, when he attended at Kogarah Police Station at 7.07pm on 30 March 2015, that he had stabbed his wife. He was covered in blood, in particular both of his hands were observed to be red in colour. His clothing had significant blood staining on it. Counsel for the accused did not submit that the Court should not find this essential element proved. On the contrary, he accepted that the Court should find that it was the act of the accused that caused the death of the deceased.
  6. Accordingly, I am satisfied beyond reasonable doubt that the Crown has established that it was the act of the accused, Haydar Haydar, in stabbing his wife that caused her death.
  7. The third essential element to be established by the Crown is that the act of the accused which caused the death of the deceased was deliberate in the sense that it was an intentional and not accidental act. The evidence of Ola persuades me that this is so. She observed the accused deliberately stabbing his wife. She tried to stop him but he continued. As well, having regard to the number of, nature of and distribution of the stab wounds, it is simply not possible to conclude that the stabbing was anything other than deliberate conduct on the part of the accused. This conclusion was not disputed by the accused.
  8. I am satisfied beyond reasonable doubt that the Crown has established that the conduct of the accused was deliberate.
  9. The fourth essential element is that the accused’s act, or his conduct which caused the death of the Salwa Haydar, was carried out with the requisite intention, namely, an intention to kill Salwa Haydar, or else an intention to cause her grievous bodily harm. Grievous bodily harm means really serious physical injury.
  10. The accused did not dispute, and his counsel expressly conceded, that the evidence established beyond reasonable doubt that his act was done with an intention to cause grievous bodily harm. The Crown submitted, and the accused disputed, that the accused’s conduct in killing Salwa Haydar was accompanied by an intention to kill her.
  11. If a finding in accordance with the Crown case is to be made, then it is necessary for the Court to proceed to a factual conclusion by drawing an inference from the proved facts, namely that the accused acted with the intention to kill his wife. I remind myself that I ought not draw any inference adverse to the accused, unless I am satisfied that it is the only reasonably available inference.
  12. Immediately prior to commencing the attack on his wife, the accused was sitting in the lounge room area. The kitchen was a separate enclosed area some metres away. The accused left the lounge on which he was sitting and walked into the kitchen area before he started to physically attack the deceased. He had also taken possession of the deceased’s phone which the accused concluded was clear evidence of her infidelity. He went to the kitchen immediately consequent upon a heated verbal exchange between himself and the deceased. The deceased’s remarks were perceived by the accused against a significant background of disharmony in his marital relationship, as being one which was made by the accused, in effect, at the direction of the deceased’s lover.
  13. As the accused walked into the kitchen, he carried with him the knife which he used to stab the deceased. There was no apparent reason for him to have carried that knife. It was not being returned to the kitchen where it might have been normally kept. There is no suggestion that the accused was physically in fear of the deceased, nor that he anticipated, on this particular occasion, that she would be armed in any way, and that he needed the knife for his own protection. Having regard to the size and nature of the knife, particularly its narrow point and the sharpness of the blade, it is not feasible that the accused would have walked with it loose in his pocket as the history which he gave the psychiatrists suggests. I am satisfied beyond reasonable doubt that he carried the knife into the kitchen in his hand, and not in his pocket. Given the immediately preceding exchange, it is highly unlikely that he carried the knife into the kitchen absent-mindedly. I reject such a conclusion – it makes no sense to me.
  14. The first point at which Ola noticed what was occurring was when the accused was angrily making a comment about his intention not to sleep in the Bexley townhouse that night. She next heard a noise which was her mother screaming. She ran towards the kitchen and observed that her mother was backed up in a corner and that her father had stabbed her in the back. Ola said that she tried to come between them and push the accused away from her mother whilst they were in the kitchen. The accused did not stop stabbing her mother but kept going. At a point in time after the three of them had left the kitchen area and moved into the lounge room area, Ola realised that she had herself been stabbed.
  15. Ola gave this description of what then happened:
“I was trying to hold his hand back, the one that held the knife, and trying to push him off her, but I couldn’t. At a point I was stuck so I kept trying to push him off her and that’s how he managed to move into the living room, because it was a scuffle.”
  1. Ola was asked what she was saying to the accused whilst trying to get him off her mother. She responded:
“ ‘You need to stop’, ‘What are you doing’, ‘Oh my God’, like,
‘You are going to kill her’” – screaming, screaming for help.”
  1. This contemporaneous comment by Ola seems to me to be highly significant. She had a good view of what was happening. She could see the knife which was being wielded. She could see the ferocity of the attack and the speed of it. She could particularly observe the degree of aggressiveness which characterised the accused. Even allowing for the frightening nature of what she was observing, her reaction was to tell the accused that unless he stopped, he would kill the deceased. That remark can be taken to be her perception of what was happening – in other words, it was clear to an independent observer that the accused was deliberately acting in a way which would produce a result, namely the death of his wife. I regard his conduct as a sure indication of his intention.
  2. The second reason Ola’s remark is significant, is that the accused, having been told and explicitly warned that, unless he stopped, he would kill his wife, did not stop but rather kept going with his attack. To me, his continuing conduct after that explicit warning is a strong indication that his intention was to kill his wife. If it were not, then I think that he would have stopped. The only inference which common sense suggests ought to be drawn, at least from that time onwards, is that the accused intended to kill the deceased and that is why he persisted with his attack.
  3. Ola continued to describe what else she heard. She said:
“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.”
  1. Ola gave the following further description about what was happening as the accused and the deceased moved into the lounge room area. She said that she was still trying to push the accused off the deceased. She said:
“He was holding her up by her hair at a point against the door.”
  1. Ola said that whilst her mother was in this position, her mother was saying to the accused:
“‘Haydar, I didn’t do anything, I didn’t do anything.”
  1. Ola said the accused did not respond to that protestation. He continued the attack. Ola then went to the telephone to call 000 for help. It was the landline that she used which was located in the living area. She was asked what observation she made of her father as she was on the telephone. She said:
“He kept going and he looked at me and said ‘What’re you doing’ when he saw me, like dialling the phone. And he continued and like, he would look back and continue, 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.”
  1. The whole of Ola’s account of what she saw and heard was not challenged in any respect. Ola was, to my observation, although obviously upset about having to give evidence of what she saw and heard, an entirely truthful and reliable witness. It has not been suggested that there is any reason why I ought not accept her evidence as being an entirely accurate account of what occurred at the time her father stabbed her mother. I do so. I am well satisfied that I should accept this account in its entirety.
  2. Accordingly, based on Ola’s account of what she saw and heard, I am satisfied beyond reasonable doubt that the accused’s conduct was accompanied by an intention to kill the deceased. But because of the importance of this finding, I will also analyse the evidence which exists apart from the detail of the account given by Ola to see if an inference about the intention of the accused can be properly drawn.
  3. It is appropriate to commence this analysis with an examination in some detail of a number of the wounds which were inflicted. I do so because the number and nature of those wounds provides evidence of what was done by the accused to the deceased.
  4. From that conduct, an inference can be drawn as to the accused’s intention. An intention connotes purpose. Where a specific result is the obvious and inevitable consequence of a person’s deliberate act, one is readily able to conclude that the act, if deliberate, was done with the purpose or intention of achieving that specific result.
  5. Although the first observation made by Ola was of the accused stabbing her mother in the back, there is no basis for any conclusion from the post-mortem examination as to the order in which the individual stab wounds were inflicted. As is clear from the content of the 000 call, and the evidence of the police officers and paramedics who were first to arrive on the scene, they were all inflicted before the deceased died, and while she was still alive.
  6. There were over 30 individual wounds inflicted by the accused on the deceased. As well, there were a number of superficial cuts and areas of contusion and abrasion.
  7. The forensic pathologist’s report noted 28 separate wounds identifiable principally on the torso of the deceased, and, additionally, a number of individual wounds involving the deceased’s left hand and right palm. Consistently with post-mortem practice, the wounds were identified both as to location on the body, length of the wound at the skin level and then the depth of wound track. It is to be recalled that the blade of the knife which was used was 11cm in length. The wounds varied in depth and length. The length of some of the wounds was such that one could readily conclude that the wound represented more than one stabbing event. However, it is unnecessary to draw any firm conclusion.
  8. For the purpose of identification in these reasons, the numbers used to describe the wounds are those used in the post-mortem report.
  9. Wound 1 was an oblique stab wound on the right upper back. The wound track was directed downwards and had an estimated depth of 10.6cms. That is to say, almost the full length of the knife blade was inserted into that part of the deceased’s body.
  10. Wound 2 was also an oblique stab wound present on the right upper back. The direction of the wound was right to left, slightly upwards and the estimated depth was 12 – 14cms. This stab wound passed through the space between the 7th and 8th ribs and entered the back of the right lower lobe of the lung. The depth of the wound satisfies me that the accused must have used some measure of force to insert the knife the full length of the blade, and a part of the handle as well.
  11. Wound 3 was a stab wound on the left upper back. The direction of the wound track was left to right and slightly upwards. The estimated depth of the wound was 10.5cm. This depth represents an almost fully inserted knife.
  12. Wound 5 was a complex stab wound on the left side of the mid-back. The direction of the wound track was left to right and downwards. The estimated length was about 12 – 14cms. This stab wound went through the lower lobe of the left lung, through the diaphragm and subsequently through the superior portion of the spleen. Its depth, 12 – 14cms, indicates that the knife was inserted completely up to and including part of the handle of the knife. It required the use of a degree of force to penetrate the soft tissues and organs of the deceased.
  13. Wound 14 was an oblique, slit like wound over the left breast. The direction of the wound track was left to right, downwards and with an estimated depth of 12 – 14cms. This wound passed through the space between the 6th and 7th ribs, and entered the upper lobe of the left lung. Like wound 2, a measure of force was necessary to insert the knife to this depth, which included the whole of the blade and a part of the handle.
  14. Wound 16 consisted of two conjoined stab wounds present on the left upper abdomen. The direction of the wound track was upwards, indicating a stab wound travelling upwards in the left abdomen, towards the direction of the left lung and the heart. The estimated depth of that wound track was 8cms, namely, a significant part of the length of the blade (about ¾) had been inserted. Clearly, the knife had been swung from a lower height and inserted so as to travel in an upwards path towards the heart.
  15. Wound 17 consisted of two additional conjoined stab wounds, again present in the left upper abdomen. The direction of the wound track was downwards and from left to right. This stab wound entered the abdominal cavity and went through the anterior aspect of the adjacent large bowel at the area of the splenic flexure. The estimated length of the wound track was 13 – 15cms. The wound track went through the opposite side of the bowel and subsequently terminated in the attached mesocolon. Whilst this wound did not cause significant damage to vital organs, the position of it and the depth of it indicate that the accused not only inserted the whole blade of the knife but continued to penetrate the deceased’s skin with a part of the knife handle. This wound, similarly to wound 5, required a degree of force to cause the knife to travel as far as it did.
  16. Wound 18 consisted of two conjoined stab wounds present in the right upper chest just to the right, by 10cms, of the mid-line. The direction of the wound was downwards and the estimated depth was 9.5cms, namely almost the entirety of the length of the knife blade.
  17. Wound 20 was a transverse slit-like stab wound present in the right upper chest, very close to the mid-line (2.5cms). It entered the anterior aspect of the upper lobe of the right lung. The wound track was measured at 8 - 10cms in depth.
  18. Wound 21 was a slit-like stab wound present over the right breast. The direction of the wound track was left to right and downwards. It entered the chest cavity and penetrated the right lung. This wound caused extensive bleeding. The estimated length of the wound track was 10 – 12cms. Again, the depth of the wound would indicate that the whole of the knife blade was inserted or, alternatively, almost all of the knife blade.
  19. Finally, it is necessary to note that there was a significant facial wound on the left side of the deceased’s face consisting of a gaping cut measuring 7.3cms in length. The cut consisted of two conjoined cuts with a slight angle, indicating either two separate stab wounds or, alternatively, movement of the knife, or the deceased’s body, at the time the wound was made. Although this was not a particularly deep wound (estimated at 2cms), it was a wound which would have bled profusely and which would have had an obvious and visible effect so far as the accused was concerned. Some of the other wounds were inflicted through the clothing worn by the deceased. Not all of them were, particularly those on the deceased’s arms. However, this wound is in a different category. Once inflicted, it would have been immediately obvious to the accused that he had inflicted serious bodily harm on the deceased.
  20. I have described the wounds, which may be regarded as the principal wounds, at some length. The location of them in the left and right chest area, both on the front and back, indicates that the accused was intending to stab the deceased in an area of her body where, as is commonly well known, the vital organs and body structures are contained. By that I mean the heart, the lungs, the complex of major arteries and veins, and the oesophagus.
  21. The overall number of wounds, in excess of 30, the fact that many wounds involved the complete length of the blade of the knife being inserted, the spread of the wounds being on the front and back of the deceased, the direction of their insertion, and the places on the body of the deceased where the knife was inserted, when all considered together indicate to me that the accused was not simply intending to cause his wife really serious physical injury. If that was all he intended to do, then he would have stabbed her on only a few occasions, somewhat more superficially, and then stopped.
  22. But in particular, the fact that with eight of the stab wounds the accused inserted the full blade length of the knife (or substantially so) and on occasion including a part or parts of the handle, indicates that he was not simply intending to wound the deceased, but rather that he intended by such deep stab wounds to harm the vital internal organs thereby leading to her death.
  23. These many stab wounds and the short time during which the attack occurred enable me to infer that, on that basis alone, the accused intended to kill the deceased. There is no other rational inference available.
  24. I have no doubt that, based on a consideration of all of the facts and circumstances revealed by the evidence, the accused intended to kill the deceased. When Ola asked him to stop, he did not do so. He persistently stabbed the deceased in circumstances where, as the photographs of the lounge room show, she was bleeding profusely. He did so by thrusting the knife upwards from below and downwards from above. The ferocity of the attack, the diverse locations of the knife wounds, the depth of those knife wounds, his failure to cease and desist when requested to do so by Ola, his ignoring of the deceased’s protestations that she had done nothing wrong, his failure to cease and desist when Ola physically put herself between the accused and the deceased, his persistence in the attack in more than one room of the house, his persistence in the attack over a prolonged period, his pausing during the attack to enable him to speak to Ola to dissuade her from seeking help, and then resume the attack, considered together, point convincingly to, and satisfy me, beyond reasonable doubt, that the accused’s intention at the time of this conduct was to kill his wife, as he succeeded in doing. It follows that I wholly reject the proposition that the accused’s intention was to merely inflict really serious physical injury on his wife and not to kill her.
  25. I am satisfied that the Crown has proved beyond reasonable doubt that the accused’s intention was to kill the deceased. Accordingly, I am satisfied beyond reasonable doubt the Crown’s case on the fourth essential element has been made out.
  26. The Crown has discharged its onus of satisfying me beyond reasonable doubt of each of the essential elements of the offence in the first count, namely the murder by the accused of the deceased at a time when he had the intention of killing his wife.
  27. It is now necessary to consider the impairment defence.

The Impairment Defence

  1. This defence, provided by s 23A of the Crimes Act, is one which must be proved by the accused on the balance of probabilities. As discussed earlier, there are three elements to this defence which need to be satisfied in order for a verdict of manslaughter to be entered in lieu of a verdict of murder.
  2. The first essential element is that the accused must prove on the balance of probabilities that at the time he committed the act (or acts) causing death, he was subject to an “abnormality of mind arising from an underlying condition”. This element requires attention to the definition of “underlying condition” in s 23A(8) of the Crimes Act, which provides that, relevantly, “an underlying conditions means a pre-existing mental condition, other than a condition of a transitory kind”.
  3. The second essential element which the accused must establish is that his capacity to control himself was substantially impaired by the abnormality previously identified. Although s 23A of the Crimes Act permits three consequences of an abnormality of mind to be considered, here the accused relied only on an impairment to his capacity to control himself.
  4. The third essential element of which I must be persuaded is that the extent of the impairment was so substantial as to warrant the liability for murder being reduced to manslaughter, because the moral culpability of the accused for his actions is appropriately reflected in a verdict for an offence of lesser seriousness.
  5. It can be observed that although these three elements are identified separately, they are inter-related.
  6. The first question is whether the accused has satisfied me on the balance of probabilities that at the time he stabbed his wife, he was suffering from an abnormality of mind arising from an underlying condition.
  7. Each of the three psychiatrists gave evidence that the accused was suffering from a form of abnormality of mind, namely a form of depression. Dr Nielssen diagnosed it as a “depressive illness”. Dr Westmore diagnosed it as a “major depressive disorder”, and Dr Allnutt described the accused’s state as being either a “depressive disorder” or a “depressive episode”. But these varying descriptions are no different in substance. The accused at the relevant time was suffering from a mental illness diagnosable as a depressive disorder, to which it will be inconvenient to refer simply as depression.
  8. I am satisfied that there was such an underlying condition. It had been present for some years, although fluctuating in intensity. The intensity increased during the weeks prior to the deceased’s death, from the time shortly before the accused went to Lebanon – when he checked his wife’s telephone and read messages which suggested to him that she was being unfaithful, and continued during his time in Lebanon where he was confronted by his mother’s dementia, his uncle’s death and being away from his son, all of which ensured that the condition continued.
  9. Although he was suffering from an exacerbation of his depression in the context of that combination of events, I am not persuaded that it was severe at the time of his return to Sydney. I am not so satisfied because it seems to me, from all of the evidence, including his entirely rational conversations with his daughters on the morning of 30 March 2015 and his actions during the day, that he was able to make decisions about where he would live in the sense of deciding that it was finally time for him to move out, and take steps to prepare for that, by going to the bank. He was able to get himself to the Bexley townhouse from the airport, and generally undertook ordinary activities of his daily living. He showered, he slept, he loaded one or more bags into his car. He had also loaded into the boot of his car many items of a household kind which he would need to set up a separate household. In a yellow plastic box he packaged foodstuffs and cleaning material, amongst other things. He also had in there a large packet of toilet paper. Whether he purchased these items from a shop of took them from the Bexley townhouse is unknown. Either way, he was entirely capable of making the appropriate decision to obtain and pack the goods in preparation for moving out.
  10. This conclusion accords with the oral evidence of Dr Allnutt that his depression fell into the mild to moderate range. I accept that opinion.
  11. The accused must demonstrate on the balance of probabilities that he was suffering from an abnormality of mind. Dr Westmore was of the opinion that the depression that he had diagnosed constituted an abnormality of mind which affected the accused’s ability to control his actions. In that respect, Dr Westmore’s opinion differed from that of Dr Nielssen and Dr Allnutt.
  12. Dr Nielssen was of the view that the abnormality of mind was to be found in the fact that the accused’s perception of the events was affected by the negative appraisal of his situation and the impairment in intellectual function arising from his state of depression.
  13. Dr Allnutt accepted that the accused was suffering from an abnormality of mind, but expressed it rather by reference to vulnerability on the part of the accused in reacting to triggers such as perceived rejection or evidence of infidelity. He suggested that, because depression is prone to aggravate the sort of emotions to which I have just referred, there was an abnormality of mind present. He identified the depression as being the underlying condition.
  14. It does not seem to me to be crucial to determine whether I prefer the views of Dr Nielssen or Dr Allnutt on this question. It is sufficient for me to say that at the time of the stabbing of the deceased by the accused, I am persuaded on the balance of probabilities that he was suffering from an abnormality of mind. That abnormality arose from his underlying condition of depression.
  15. The second element of the impairment defence is that the accused has to persuade me on the balance of probabilities that, in this case, his capacity to control himself was substantially impaired by that abnormality of mind.
  16. On this issue I do not find Dr Westmore’s report and opinion to be of much assistance. That is because his report contains little reasoning as to how he comes to the conclusion which he does on that question. On this issue, it is unpersuasive.
  17. Dr Nielssen reasoned that the nature of the offence, including the injury to the accused’s daughter, Ola, who attempted to intervene and prevent the attack, was consistent with impairment in the accused’s ability to control his actions. He next reasoned that by reference to the accused’s history, particularly of an absence of any previous physical violence of any relevant kind and the presence of depression which affected his perception of the events by a negative appraisal of his situation, the necessary causal link was demonstrated between the events and the impairment of his capacity to control himself. He also said in evidence that he did not regard the impairment as trivial or minimal, with the consequence that he regarded it as a substantial impairment.
  18. Dr Allnutt analysed the matter slightly differently. He expressed the view that the presence of the depression meant that the accused was vulnerable to reacting emotionally, that is to say not being able to control himself, when a trigger event, such as a perceived rejection by his wife, occurred. As Dr Allnutt said of the accused:
“His depression would have aggravated his vulnerability to emotional reaction under these sorts of circumstances.”
  1. Dr Allnutt made the point that whilst the actions which occurred may have occurred in the absence of the accused’s depression, the presence of the depression could not be disregarded because of its tendency to aggravate the emotions of the kind to which he referred. Dr Allnutt also accepted that the impairment of which he spoke was a substantial one because it was more than trivial or minimal.
  2. To the extent that there is any difference of substance between the expert opinion of Dr Nielsen and Dr Allnutt, I prefer the opinion of Dr Allnutt on this issue. I am persuaded on the balance of probabilities that the accused’s capacity to control himself was impaired by his depression. It made him vulnerable to reacting in a way that demonstrated a loss of control if a trigger event occurred. I am also persuaded on the balance of probabilities that the impairment was substantial, as that term is used for the purpose of s 23A of the Crimes Act, namely, more than trivial or minimal.
  3. I am accordingly persuaded of the second essential element of the impairment defence. This means that the accused has satisfied me of the requirements of s 23A(1)(a) of the Crimes Act.
  4. It is now necessary to consider the third essential element of the impairment defence which is that contained in s 23A(1)(b) of the Crimes Act. This requires a determination of whether the impairment was so substantial that it warranted a conviction for manslaughter instead of murder.
  5. However, I am conscious that in considering the extent of impairment of the accused’s capacity for self-control, and in the determination of the issue under s 23A(1)(b) of the Crimes Act, such a task must be approached by looking at all of the evidence in a broad, common sense way.
  6. 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.
  7. 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.
  8. 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.
  9. In considering this element, it is not necessary for me to be persuaded that the impairment was the sole cause of the accused’s loss of self-control. What has to be determined is whether, to the extent that the accused’s capacity for self-control was impaired by his depression, that impairment was not just more than trivial or minimal, but whether it was so substantial to warrant finding a verdict for the lesser offence. There is no scientific measure by which this can be judged – it is a matter of making an evaluation in light of all of the facts and circumstances.
  10. It is clear to me that in the few moments when the accused confronted the deceased in the kitchen, the accused swiftly became enraged and commenced violently attacking the deceased, who turned away in an attempt to protect herself. I am satisfied that the accused had lost his self-control when he started the stabbing attack and was quite unable to control his anger. He ceased the attack when he could not dissuade Ola from calling for help from the Emergency Services. The realisation that they would be attending caused him to leave to avoid the immediate consequences of what he had done.
  11. I observe, and take full account of, the fact that the evidence was, with one exception which I do not regard as having any real consequence, that the relationship of the deceased and the accused was not a violent one. Previous arguments had not led to violence. The deceased and the accused had negotiated, apparently amicably, the division of their joint property. It was this fact, accepted by the Crown, which senior counsel for the accused emphasised as demonstrating that the Court should conclude that the accused’s depression was the predominant cause of what occurred, and that I should find the impairment was “... so substantial” as required by s 23A(1)(b) of the Crimes Act. However, I am not persuaded that the existence of depression was the only factor which explains the behaviour of the accused on that evening.
  12. The accused had only persuaded himself just prior to leaving for Lebanon that his wife had been unfaithful. He clearly remained preoccupied with that perception upon his return from Lebanon. He discussed this view with his two daughters when they first met earlier in the morning. He took some preliminary steps to make provisions for alternative accommodation. He took the deceased’s mobile telephone after she returned home from work so that he would have proof of her infidelity and then he lost control and attacked her when he perceived that she was acting in a way that accorded with her lover’s wishes.
  13. What this picture suggests is that principally, the causes of the accused’s loss of self-control were his feelings of jealousy and anger. I accept that his depression was present at the same time, although it was not severe. It was mild to moderate, but sufficient to impair his capacity for self-control.
  14. It is for the accused to persuade me, on the balance of probabilities, that so substantial was the impairment to his capacity for self-control that he should not be condemned as a murderer but rather should be found guilty of manslaughter, because that crime is a proper reflection of his reduced moral culpability and blameworthiness for his criminal conduct.
  15. In answering this question, I will approach the matter in a broad common sense way, and by applying community standards. 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. There are many features of the accused’s conduct which stand against any reduction of the offence for which he is to be found guilty.
  16. 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 accused should be regarded was warranting a conviction for a lesser charge.
  17. 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.
  18. 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.
  19. 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 selfcontrol 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.
  20. 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.
  21. It follows that the accused has not satisfied me of each of the essential elements of the impairment defence, and it fails.
  22. There will be a finding of guilty of murder on Count 1.

Count 2

  1. Given that I earlier expressed a satisfaction beyond reasonable doubt that the accused had an intention to kill at the time he attacked the deceased (which necessarily means that he had an intention to cause her grievous bodily harm), and given that there is no doubt that he wounded his daughter, Ola, when she intervened to try and stop the attack, it follows that I am satisfied beyond reasonable doubt that each of the essential elements of the charge in Count 2 are made out, and that the accused is guilty of that offence.
  2. Senior counsel for the accused did not make any submissions at all contrary to a finding of guilty of this offence. Having regard to the accused’s plea of guilty to manslaughter, and his concession that he had the intention to cause grievous bodily harm to the deceased, this approach by senior counsel is entirely appropriate.
  3. A finding of guilty on this is inevitable.
  4. There is no need to consider the offence in Count 3 which was charged as an alternative to Count 2.

Verdict

(i) Count 1: that on 30 March 2015, at Bexley in the State of New South Wales, Haydar Haydar did murder Salwa Haydar.

Verdict: Guilty.

(ii) Count 2: that on 30 March 2015, at Bexley in the State of New South Wales, Haydar Haydar did wound Ola Haydar with intent to cause grievous bodily harm to Salwa Haydar.

Verdict: Guilty.

(iii) Count 3: in the alternative to Count 2, that on 30 March 2015, at Bexley in the State of New South Wales, Haydar Haydar did recklessly wound Ola Haydar.

No verdict required.

Orders

  1. I make the following orders:

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