Ahmed v R

Court of Criminal Appeal (NSW)|2021-08-25|Before: Bathurst CJ, Wright JJ, Schmidt J

[This headnote is not to be read as part of the judgment] The applicant, Shahab Ahmed, sought leave to appeal against his conviction for the murder of his wife, Khondkar Fariha Elahi (the deceased). Following a judge alone trial, the applicant was sentenced to a term of imprisonment of 27 years with a non-parole period of 20 years and 3 months. On the evening of 18 February 2017, the applicant killed the deceased following an argument about the deceased's relationship with the couple's friend, Mr Khan. The applicant alleged that the deceased was lying about her relationship with Mr Khan, believing that the deceased and Mr Khan were having an ongoing affair. Holding a knife, the applicant demanded the deceased give him access to her phone. The deceased eventually unlocked her phone and the applicant reviewed the messages, which showed ongoing and recent contact between Mr Khan and the deceased, some messages of which were sexual in nature. After seeing those messages, the applicant stabbed the deceased repeatedly, causing her death. At his trial, the applicant admitted to killing the deceased but raised the partial defence of substantial impairment by abnormality of mind within the meaning of s 23A of the Crimes Act 1900 (NSW). Pursuant to s 23A(4), the applicant had the onus of proving this defence. The trial judge rejected the defence and entered conviction for murder. On appeal, the applicant argued that the trial judge erred by failing to properly apply the principles of law relating to the silence of an accused person at trial, including that her Honour failed to adequately direct herself as to the applicant's failure to give evidence. The applicant also argued that the verdict was unreasonable because the trial judge unreasonably rejected the opinion of expert psychiatrist Dr Nielssen. Did the trial judge fail to properly apply the principles of law relating to the silence of an accused person at trial? i) In a trial by judge alone, s 133(3) of the Criminal Procedure Act 1986 (NSW) requires the trial judge to take into account by expressly referring to in his or her reasons for judgment any warning which would have been required to be given to a jury: [38]-[41] (Bathurst CJ); [97] (Garling and Wright JJ). Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, referred to. ii) A warning that no adverse inference can be drawn from the failure of an accused to give evidence is of particular importance in a case where the onus lay on the accused to establish a defence: [42]-[44], [47] (Bathurst CJ). Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25; GBF v R [2020] HCA 40; (2020) 94 ALJR 1037, referred to. iii) Whilst the warning against drawing an adverse inference from the accused's silence is not a mandatory direction, it is one which is required in most cases: [47] (Bathurst CJ). Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, referred to. iv) The trial judge did not expressly refer to a warning that no adverse inference can be drawn from the failure of the applicant to give evidence and there was thus an error within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW): [47] (Bathurst CJ); [97] (Garling and Wright JJ). v) Whether or not a warning against drawing an adverse inference from the accused's silence can be implied from a right to silence direction depends on the context in which that direction was given: [48] (Bathurst CJ). vi) In the context of this case, it cannot be implied that the trial judge warned herself of the need to guard against drawing adverse inferences from the failure of the applicant to give evidence: [49]-[54] (Bathurst CJ). vii) Discussion of the appropriateness of directions with respect to certain evidentiary issues: [85]-[97] (Garling and Wright JJ). Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25; RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3; Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8; Peacock v The King (1911) 13 CLR 619; [1911] HCA 66, referred to. Was the verdict unreasonable because the trial judge unreasonably rejected the opinion of Dr Nielssen? i) Expert evidence has no role to play in assessing pursuant to s 23A of the Crimes Act whether an impairment is so substantial as to warrant liability for murder being reduced to manslaughter: [59] (Bathurst CJ). R v Byrne [1960] 2 QB 396; R v Trotter (1993) 35 NSWLR 428; Quinn v R [2018] NSWCCA 297; Tarrant v R [2018] NSWCCA 21, referred to. ii) In light of the fact that, as a result of the applicant's success on ground 1, there will need to be a new trial, it is inappropriate for the Court to deal with this matter: [62] (Bathurst CJ).

Judgment

BATHURST CJ: The applicant, Shahab Ahmed (the applicant or Mr Ahmed), was convicted following a judge alone trial for the murder of his wife, Khondkar Fariha Elahi (the deceased or Ms Elahi). He was sentenced to a term of imprisonment of 27 years with a non-parole period of 20 years and 3 months.
At his trial, the applicant admitted to killing the deceased but raised the defence of substantial impairment within the meaning of s 23A of the Crimes Act 1900 (NSW). That section, so far as relevant, was in the following terms: "23A Substantial impairment by abnormality of mind (1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. (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. … (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."
The trial judge rejected this defence, entered a conviction for murder and imposed the sentence to which I have referred. The applicant has appealed against his conviction on the following grounds: "(1) The trial judge erred by failing properly to apply the principles of law relating to the silence of an accused person at trial, in that her Honour: (a) failed adequately to direct herself as to the applicant's failure to give evidence; (b) wrongly implied an expectation that the applicant would give evidence in support of his defence; and (c) had regard to the applicant's failure to give evidence on the question of his guilt, contrary to authority holding that this is an irrelevant consideration save in rare and exceptional cases. (2) The verdict is unreasonable because the trial judge unreasonably rejected the opinion of Dr Nielssen."

The agreed facts

The parties tendered an agreed statement of facts at the trial. Consistent with the approach taken by the trial judge (R v Ahmed (No 2) [2019] NSWSC 517 (the trial judgment) at [55]), it is convenient to set them out in full. "(1) Both Mr Ahmed and Ms Elahi were born and grew up in Bangladesh where they first met, after having earlier had contact on social media for some 4 years. They married in September 2011, but never had children. Theirs was not an arranged marriage and it was initially a happy one. (2) They moved together to Australia in 2011, where they eventually came to live at Parramatta. Mr Ahmed worked in various positions at the Arts Hotel at Paddington, from shortly after their arrival. Ms Elahi studied at the University of Western Sydney to obtain a Master's degree, before obtaining work in 2014 with the assistance of a friend, Mr Khan. (3) Mr Ahmed and Mr Khan had first come to know each other in 2004 in Bangladesh, while they were both still unmarried. Mr Khan later also married and the two couples socialised in Australia, together with other friends. (4) Over time Ms Elahi and Mr Khan developed a romantic relationship, which Mr Ahmed came to suspect. They came to share intimate conversations with each other over text and phone calls and went out together. Mr Khan also sent gifts to Ms Elahi's workplace. (5) In early 2015, while the two couples were all in Bangladesh, Mr Ahmed confronted Ms Elahi about her relationship with Mr Khan, which she denied. (6) They returned to Australia and Mr Ahmed and Ms Elahi then obtained permanent residency. On 27 March 2015, Mr Ahmed visited his GP Dr Trung Ngo. He told the doctor that he was stressed with family and his wife and was prescribed Normison to help him sleep. (7) In April 2015 the friendship between Mr Ahmed and Mr Khan came to an end, after Mr Ahmed again confronted Ms Elahi, who denied the affair and Mr Ahmed spoke to Mr Khan about causing problems in his marriage. The friendship between Ms Elahi and Mr Khan, however, continued. (8) Mr Ahmed and Ms Elahi experienced ongoing difficulties with their marriage. Mr Ahmed told friends that Ms Elahi no longer wanted to live with him, as a result of their problems. While they remained living together, they stopped attending social situations as a couple. (9) On 13 April 2015, Mr Ahmed consulted Dr Ngo due to depression over his wife wanting to separate. He said that he could not stop thinking about her leaving, had been scared about her leaving and as a result, had been unable to work for two days. (10) On 18 April 2015, police attended the couple's unit after Mr Ahmed had called an ambulance. Police spoke to both he and Ms Elahi separately and were told by both that there had been no violence or threats of violence by either; that they had been having marital problems; that they had been arguing earlier; Mr Ahmed had become upset and said he was going to leave; due to his emotional state, Ms Elahi panicked about him leaving; and it was her panic which caused Mr Ahmed to call the ambulance. Ms Elahi also said that she had been trying to get him to see a psychologist about his mental health, because she believed he needed help. (11) On 22 April 2015, Mr Ahmed again attended Dr Ngo about his marital issues. Dr Ngo discussed a mental health program with counselling support. Mr Ahmed preferred to wait, as his father-in-law was due to arrive in Australia, to help the couple resolve their marital problems. (12) On 25 May 2015, Mr Ahmed and his father-in-law saw Dr Ngo. Mr Ahmed then said he needed help for his mental state and was referred for a Mental Health Treatment Plan. (13) Between April and July 2015 Ms Elahi also saw Dr Ngo, in whom she confided that she was experiencing marriage problems. (14) On 18 July 2016, Mr Ahmed again visited the doctor, seeking pain medication. He had punched a gyprock wall and fractured two bones in his hand five days earlier, after arguing with Ms Elahi. (15) On 30 August 2016, Mr Ahmed and Ms Elahi attended Dr Ngo's surgery for a post-operative review. Mr Ahmed had undergone surgery for the removal of a nasal tumour/polyp. During his recovery Ms Elahi took time off work to care for him. (16) On 26 September 2016, Mr Khan's wife was given a 'love letter' by her brother-in-law, written by Ms Elahi and addressed to Mr Khan. Mr Khan denied knowing what the letter was about. His wife telephoned Mr Ahmed and informed him of the letter and that she had evidence that Ms Elahi and Mr Khan were having an affair. She then forwarded him a copy of the letter and he recognised the writing to be Ms Elahi's. (17) They also considered hiring a private investigator to confirm their suspicions, but Mr Khan's wife declined and Mr Ahmed ended the conversation, saying that he was not feeling well. (18) Later that day Ms Elahi contacted police after a telephone conversation with Mr Ahmed, during which he said things which caused her to believe that he would harm, or kill himself. Police again attended the couple's home, where they found Mr Ahmed standing within the front doorway, upset and emotionally distraught. He told police that his wife was having an affair and that he didn't know what to do about it. (19) Police conducted various checks and found that Mr Ahmed did not have a mental health history. The Mental Health Team was called to attend, but decided not to schedule him. He agreed, however, that he required professional help and would seek assistance from his doctor. (20) On 11 October 2016, Ms Elahi contacted a friend and enquired about moving out of the couple's home and moving in with her, because she wanted a divorce. The friend waited for her to come to stay, but Ms Elahi did not attend. (21) In November 2016, Mr Ahmed told a friend that Ms Elahi wanted a break from the marriage. He travelled back to Bangladesh to spend time with family and to give her time to decide what she wanted to do. Whilst he was away, she confided in a friend that she was considering divorce. (22) Mr Ahmed returned to Australia on 14 February 2017. (23) On 16 February 2017, Mr Ahmed contacted his manager at the Arts Hotel and told him that his wife was talking about divorcing him. On 17 February 2017 they spoke about him coming back to work. That day he also called his mother-in-law in Bangladesh and told her that Ms Elahi planned to divorce him. (24) On 18 February 2017, Mr Ahmed told a friend that Ms Elahi wanted a divorce. He said he wasn't going to help her and that she could do it all herself, as she had already researched the procedure, but that he would try and work on the marriage. (25) That day Ms Elahi met with a friend for breakfast. She was upset and stressed about her ongoing issues with Mr Ahmed and said that she wanted a divorce. She also confided that she had developed feelings for a former male co-worker; that it had not developed into anything physical, but that she had written a letter to him, expressing her feelings; and the letter had been found by his wife, who had shown it to Mr Ahmed. The friend agreed to assist Ms Elahi putting together the paperwork for the divorce. (26) At about 1:00pm a work colleague telephoned Mr Ahmed to see if he could do the night shift on 19 February 2017. Mr Ahmed sounded upset and spoke in a soft voice. (27) At around 7.50pm the couple were at home together, when a heated argument began about Ms Elahi's' [sic] relationship with Mr Khan. Mr Ahmed snatched her phone from her hands, in order to go through her messages. He dragged her into the bedroom and demanded that she tell him the truth about what was happening. (28) Ms Elahi then suffered a small injury near her ear which bled and which she wiped with tissues which Mr Ahmed gave her. (29) Mr Ahmed told her that she was lying about the relationship and that the phone would reveal if there was still an ongoing affair. Ms Elahi said she wasn't feeling well and asked for a glass of water. He grabbed her by the hand and took her to the kitchen, where he got her a glass of water. He then picked up a kitchen knife that was on the bench and said: 'if you shout or scream, I'll kill you. Give me access to your phone, I will show you that you are lying after you, after proving that I will go away.' He then pulled her back into the bedroom. (30) There they sat on the corner of the bed, where Mr Ahmed placed the knife. He told her 'I will see the phone. I will see the phone today' and that she would not have time to remove anything. Ms Elahi repeatedly said, 'I've done a lot of mistake, please forgive me.' She did not want to give him access to her phone, but after a further argument she ultimately unlocked it. (31) Mr Ahmed then reviewed messages on the phone, which showed ongoing contact between Mr Khan and Ms Elahi within recent days, some of which were of a sexual nature. (32) After seeing those messages, Mr Ahmed picked up the knife and stabbed Ms Elahi repeatedly, while she was saying 'Forgive me Rasel, forgive me Rasel.' (33) Mr Ahmed inflicted fourteen stab wounds to Ms Elahi's back, right upper chest, right ear and right cheek, as well as an incised wound at the base of her right thumb, in keeping with a defensive injury. She also suffered bruises and abrasions to the right side of her face and upper arms. (34) Mr Ahmed then left Ms Elahi on the bed and got his cigarettes. He smoked several cigarettes over about 10 minutes and did not attempt to render her any first aid. At 9:36pm he updated his Facebook status to read: 'THE END' and at 9:46pm, he changed the profile picture on Ms Elahi's Facebook account to a photo of the two of them together, smiling. (35) It was not until 9:48pm, that Mr Ahmed called 000 and told the operator that he had 'killed my wife' and that she was 'dead'. (36) When police arrived they found Mr Ahmed covered in blood and Ms Elahi lying on the bed on her back, not breathing. Police attempted CPR, but she was unresponsive and could not be revived. At hospital she was pronounced life extinct at 10:53pm. (37) In the autopsy report the cause of Ms Elahi's death was said to be multiple stab wounds to the chest and abdomen. The fourteen sharp force injuries noted were: (a) Right ear - 40 x 15mm c shaped incision, extending to the cartilage. (b) Right posterior neck - 36mm horizontal stab wound, extending through the muscles of the posterior neck to the cervical vertebrae. (c) Right posterior neck - 36 x 4mm horizontal stab wound, extending through the muscles of the posterior neck to the cervical vertebrae. (d) Right upper back - 29 x 8mm irregular incised wound, extending into subcutaneous fat. (e) Right upper back - 32 x 5mm gaping stab wound, extending into subcutaneous fat. (f) Right upper back - 42 x 20mm gaping stab wound, extending into the soft tissue of the neck. (g) Right upper back - 36 x 15mm gaping stab wound, terminating in right scapula (fractured). (h) Right mid back - 45 x 10mm gaping stab wound, extending into posterior right pleural cavity just below rib 6, through lower lobe of right lung and diaphragm into inferior vena cava, just above the liver. (i) Right lateral back - 9mm incised wound, extending into subcutaneous fat. (j) Right lower back - a cluster of superficial incised wounds and red abrasions from 8 x 2mm, up to 20 x 8mm (k) Left lower back - 40 x 20mm vertical gaping stab wound, through right psoas muscle into the abdomen, into, but not through, the jejunal wall. (l) Right thumb - 15 x 10mm irregular incised wound, extending into subcutaneous fat. (m) Right cheek - 15 x 8mm gaping stab wound through cheek and right upper lip to buccal mucosa - tip of knife retrieved between two of right upper teeth. (n) Right upper chest - 55 x 20mm gaping stab wound, extending into right pleural cavity between ribs 3 and 4. (38) The following blunt force injuries were also found: (a) Head and Neck (i) Small tan abrasions just lateral to the right eye, on right upper cheek and on right side of jaw. (ii) Contusion on deep surface frontal scalp. (b) Torso (i) 40 x 10mm red-purple bruise/abrasion on right upper chest. (c) Upper limbs (i) Bruise and abrasion on left upper arm. (ii) Bruises on right upper arm, forearm and wrist. (d) Lower limbs (i) Abrasions on anterior right knee."

The judgment of the trial judge

Prior to setting out the agreed facts, the trial judge made a number of preliminary comments. Her Honour pointed out that the applicant never denied inflicting the 14 stab wounds from which the deceased died. Her Honour also pointed out at the outset of her judgment that he not only told the operator that his wife was dead, but that he had killed her by stabbing and that an ambulance was not needed.
In the early part of her Honour's judgment, she also referred to the interview conducted by the police in the early hours of 19 February 2017, the morning after the murder. Her Honour noted that the applicant stated that what he had done to the deceased was "very wrong and not forgivable, but in the end, contrary to his chilling description of all that he had done to her, he said that he had not intended to kill [the deceased]" (at [2] of the trial judgment). Her Honour noted that the applicant's account included that "after he had assaulted and repeatedly stabbed Ms Elahi, he had done nothing to help her before she died", and that there was "no issue that instead, he delayed calling 000 until after he had smoked some cigarettes; made entries on both his and Ms Elahi's Facebook pages; and watched her, until she had stopped breathing": at [3] of the trial judgment.
The trial judge also noted that the applicant told the police that the deceased gave him access to her phone after he had assaulted her and threatened to kill her with a knife which he had grabbed from the kitchen. Her Honour noted that the applicant said that it was only after he read recent text messages on the deceased's phone, which confirmed an affair the deceased had had with a friend was still continuing, he lost control and stabbed her.
The trial judge then dealt with the issues between the parties. In particular, her Honour made the following comment concerning the onus of proof: "[11] Many of the relevant facts were agreed and the evidence, apart from that of the experts who had interviewed Mr Ahmed in 2018, was largely unchallenged. Mr Ahmed also tendered some documents, but he elected not to give evidence, despite the onus which fell upon him, to establish the defence which he advanced, on the balance of probabilities."
The trial judge noted (at [15] of the trial judgment) that s 23A of the Crimes Act (s 23A) required the applicant to establish on the balance of probabilities that at the time he killed the deceased: "(1) he suffered an abnormality of mind arising from an underlying condition; (2) that abnormality substantially impaired his capacity to control himself; and (3) that his impairment was so substantial as to warrant his liability for murder being reduced to manslaughter." Her Honour noted that expert opinion was relevant to the resolution of the first two questions, but inadmissible on the third, and that even in relation to the first two questions, she was not bound to accept the experts' opinions.
Her Honour stated that there was no issue between the parties given the common view of the experts called by them that the applicant suffered an abnormality of mind arising from an underlying condition, namely, a chronic adjustment disorder. Her Honour noted that the experts had agreed that it was a depressive illness which had persisted for some two years before he killed the deceased and that he had developed the condition in response to the breakdown of his marriage. Her Honour also stated that the experts agreed the severity had fluctuated over that time.
The trial judge also stated that she was satisfied that when the applicant killed the deceased he did suffer such an abnormality of mind. Her Honour stated however, that the experts disagreed on the second question posed by s 23A, namely, whether the abnormality substantially impaired the applicant's capacity to control himself. Her Honour stated that that issue must be resolved on all the evidence, "bearing in mind that in s 23A 'substantial' and 'impaired' have their normal meaning" (at [26] of the trial judgment).
The trial judge stated that the third question involved a value judgment which required community standards to be applied. Her Honour stated (at [30] of the trial judgment) that she was obliged to apply the standards which she regarded as current in the community, in determining whether the applicant had established that his impairment was so substantial that his liability to punishment should be reduced from that which would follow from a conviction for murder, to that which would follow from a conviction for manslaughter.
The trial judge then set out other principles of law which she stated that she was bound to apply. Of importance, these included the following (at [34] of the trial judgment): "(16) Right to silence - Mr Ahmed had a right to silence which he chose not to exercise, when he admitted to police what he had done, on the night he killed Ms Elahi. He also gave the 000 operator and later Dr Nielssen and Dr Martin accounts of what he had done. Mr Ahmed chose, however, not to give evidence at the trial, as was also his right. (17) Assessment of Mr Ahmed's various accounts - There are differences in the various accounts Mr Ahmed has given. While the parties have agreed relevant facts, how they differ from his earlier accounts and how those accounts differ from each other, have to be considered in resolving what lies in issue between the parties. So, too, does the fact that none of Mr Ahmed's accounts were given on oath and that they have not been tested in cross-examination."
Thereafter in a section of her Honour's judgment entitled "Findings on the agreed facts", the trial judge stated (at [36] of the trial judgment) that one difficulty in determining whether the defence was established was that it was necessary to make findings of fact in circumstances where the parties not only agreed on many of the facts, but where what they agreed upon departed in relevant respects from some parts of the earlier accounts which the applicant had given as to how he came to kill the deceased. Her Honour noted that the expert psychiatrists who gave evidence, namely, Dr Olav Nielssen on behalf of the applicant and Dr Adam Martin on behalf of the Crown, considered three of those accounts. Her Honour stated that the agreed facts in large part reflected the accounts which the applicant gave on the night he killed the deceased, but did not adopt aspects of what he later told Dr Nielssen and Dr Martin and upon which they arrived at their opinions. Her Honour stated (at [39] of the trial judgment) that it was "difficult to see how some aspects of the agreed facts and his earlier accounts can be reconciled". Her Honour then made the following comments (at [40] of the trial judgment): "[40] Also necessary to consider was that because Mr Ahmed exercised his right not to give evidence at trial, all of his accounts are untested. The result was that while there was no issue that as well as the agreed facts, Mr Ahmed's earlier accounts are all relevant to resolving what lies in issue, his accounts had to be approached with caution and the differences between them and the agreed facts considered carefully, in arriving at a conclusion as to whether Mr Ahmed had established his defence."
Her Honour then stated (at [43] of the trial judgment) that, having considered the agreed facts as well as the applicant's various accounts, but for the agreement about the facts, she would not have been able to come to important findings which supported the partial defence which was advanced, stating that that was because she was satisfied that those accounts were not entirely reliable. Her Honour stated (at [44] of the trial judgment) that on the applicant's accounts alone she would not have found that he repeatedly stabbed the deceased in one episode of a murderous rage, only after she had given him access to her phone and he had read the text messages which she had recently exchanged with Mr Khan, confirming his suspicions that her relationship with Mr Khan continued.
In that context, her Honour stated (at [48] of the trial judgment) that although the applicant's account that he only stabbed the deceased after he read the text messages was consistently given, this sequence of events "seemed quite improbable, given what he otherwise described having done to [the deceased] and what the objective evidence established". Her Honour stated (at [49] of the trial judgment) that the objective evidence included that the deceased's phone could only be activated by the use of her thumb; that stored in the phone were very recent text messages which not only confirmed that she had continued her relationship with Mr Khan, but which also revealed the intimate nature of that relationship; and that as well as the stab wounds the applicant inflicted to many parts of the deceased's body which caused the injuries from which she died, the applicant had also inflicted many other injuries.
It seems that the trial judge based these remarks on this issue on the fact that she regarded all the other evidence as establishing that it was unlikely that the deceased gave the applicant access to her phone, "despite the fury he described feeling, the threat he said he had made at knifepoint to kill her and his assaults, given what she knew he would find there" (at [51] of the trial judgment). Her Honour stated (at [51] of the trial judgment) that "[l]ogically they were rather likely to heighten Ms Elahi's efforts at resistance, consistent with the other injuries she suffered". Her Honour stated (at [51] of the trial judgment) that the hypothesis that the applicant used the deceased's thumb to access her phone when she was no longer capable of resisting him was "clearly possible, on all of the evidence". Her Honour stated in those circumstances, she did not accept that the applicant's accounts were either entirely accurate or reliable, although she accepted that she was bound by the agreed facts (at [51]-[54] of the trial judgment).
Thereafter, the trial judge recorded the agreed facts.
I have dealt with the opening part of her Honour's judgment in some detail because it provides the context of the complaint made in ground 1 of the grounds of appeal, namely, a failure to adequately direct herself as to the applicant's failure to give evidence.
After citing the agreed facts, the trial judge turned to deal with the experts' opinions. Her Honour first dealt with the evidence of Dr Nielssen. Her Honour noted (at [58] of the trial judgment) that Dr Nielssen expressed the view that the applicant would be able to raise a s 23A defence, explaining his conclusion in the following manner: "He had an underlying condition, within the meaning of Section 23A of the Crimes Act, in the form of a pre-existing depressive illness following his wife's announcement that she wanted to end the marriage, and made worse on 26.9.16 by the discovery that his wife was having an affair with their good friend. The offence itself took place during an acute exacerbation of his condition triggered by the discovery of intimate text messages when he had believed the affair was over and that he was returning to Australia to resume the marriage. His abnormal state of mind affected his perception of events, as he described feeling that his wife and friend were mocking him and wanted to provoke him to commit suicide, and also his capacity for self-control, which is apparent in the offence itself. Intoxication was not a factor."
Her Honour stated (at [59] of the trial judgment) that Dr Nielssen's conclusions rested on an understanding of the relevant facts which was not consistent with the agreed facts, or supported by other evidence, including the applicant's earlier accounts.
Her Honour then referred to the evidence of Dr Martin, noting (at [61] of the trial judgment) that he expressed the following views: "In my view, the central issue will be whether the court accepts that he had some form of depressive illness in the context of marital conflict which might have resulted in impairing his capacity to control his actions and where the court might consider that he was 'substantially impaired', reducing the charge of murder to manslaughter. Firstly, I think it is more likely than not that he had an adjustment disorder with depressive symptoms in the two years leading up to the alleged offending [and subsequently][.] Generally, a person with depressed mood in the context of relationship conflict might be considered more prone to over reacting to perceived provocation. For these reasons, it might be argued that Mr Ahmed was substantially impaired. However, this argument can reasonably be contested because in my view, adjustment disorders are not generally considered to be in the severe end of the spectrum of mental disorders, are relatively common and generally do not cause severe impairment with a level of function In support of this proposition, Mr Ahmed gives an account of being reasonably hopeful of resolving the martial issues after a break in Bangladesh and where he had cooked for his wife before her return from a friends on the day of the alleged offending and had made plans to return to work. In Dr Nielssen's report, he recalls Mr Ahmed saying at page 2 'when I came back from my country four days before this I did not think this would happen … that night I did not think it would happen ... I come back with hope and gifts for her', is not particularly suggestive of a sustained depressed mood in the days before the alleged offending. In my opinion, while accepting that Mr Ahmed may have had some depressive symptoms in the years before the alleged offending, it appears to me that a rational explanation for the alleged offending is that Mr Ahmed was enraged by finding evidence of an affair on his wife's phone forced at knife point and that he subsequently stabbed her repeatedly out of jealousy and perceived humiliation."
The trial judge then noted (at [62] of the trial judgment) that in a joint report ordered by her, both the experts agreed that when the applicant killed the deceased he was "affected by a chronic adjustment disorder, that being a clinically significant response to an adverse life event, the breakdown of his marriage, manifesting with the syndrome of depression". Her Honour also noted (at [65] of the trial judgment) that the report recorded that "Dr Nielssen took the view that the abnormality of mind arising from the acute exacerbation of Mr Ahmed's chronic depressive illness was significant, and resulted in significant impairment in the domains of mental function set out in section 23A of the Crimes Act". Her Honour noted (also at [65] of the trial judgment) that the report recorded that "Dr Martin took the position that Mr Ahmed had not been grossly impaired in level of function in the weeks leading up to the alleged offending" and "that while being depressed would make a person more prone to over-reacting and could impact on a person's ability to control their behaviour, … that the ultimate issue of whether Mr Ahmed was substantially impaired by chronic adjustment disorder to the point that murder should be reduced to manslaughter was a matter for the court".
Her Honour noted (at [66] of the trial judgment) that after the joint report the experts considered the evidence that whilst in Bangladesh, before his return to Australia in 2017, the applicant had "conducted internet searches about punishment for adultery".
The trial judge then dealt with the evidence of other witnesses. Her Honour referred first to the evidence of Detective Sergeant Fenwick and concluded that that established that in 2015, the applicant saw Dr Ngo about his depression in May 2015 in the company of the deceased's father, but he pursued no treatment. Her Honour stated that consistent with this history, the evidence of the applicant's work colleague and his manager was that prior to 2016, the applicant was not affected by depressive symptoms. Her Honour noted (at [109] of the trial judgment) that their evidence was that prior to 2016 he had a work history of "always being punctual, polite, cheerful and responsible".
Her Honour then dealt with evidence of, among others, the applicant's manager, Mr Khan, with whom the deceased was pursuing a relationship, Mr Khan's wife, and a person described in the judgment as "Mr Ahmed's friend". These individuals gave varying accounts of his mental state from time to time over the period 2015 to 2017. Because of the view I have taken on ground 1, it is unnecessary to set out this evidence or her Honour's summary of it in any detail.
The trial judge noted that the applicant went to Bangladesh in November 2016. Her Honour noted that prior to that time the evidence also established that the deceased was in a relationship with Mr Khan and that the applicant was aware of this by September 2016. Her Honour noted (at [157]-[158] of the trial judgment) that whilst in Bangladesh, the applicant wrote to the deceased stating that "he always thought that things would get better" and that "if they were together and worked hard on their relationship, which he was ready to do, gradually they could help each other 'to improve'". Her Honour noted that the applicant also urged the deceased "not to make her decision [to divorce] before she had rethought everything and that he would not give up hope" (at [158] of the trial judgment).
The trial judge also referred to Facebook messages which the applicant and the deceased exchanged whilst the applicant was in Bangladesh. Her Honour stated (at [159] of the trial judgment) that contrary to what the applicant later told Dr Nielssen, "what Ms Elahi said in those messages, cannot have given him hope on his return that she had altered her mind about their relationship continuing". Her Honour also stated (at [160] of the trial judgment) that to the contrary, in a long series of exchanges on 12 February 2017, the deceased told the applicant, "nothing has changed"; "I am in my position that I was three months ago"; "I have nothing to offer you"; and "I do not think we have a future together". Her Honour noted that the person she described as "Mr Ahmed's friend", Mr Arijit Barua, said that on 15 February 2017 he had sent the applicant a text asking him what the deceased's decision was and the response was "divorce" (at [133] of the trial judgment). The trial judge also noted Mr Barua's evidence that on the morning of 17 February he spoke to the applicant for about 18 minutes. His evidence was that the applicant sounded quite normal and said (quoted at [133] of the trial judgment): "Farinha wants a divorce but whatever the procedures are I'm not helping, she can do it all herself. Farinha has already researched about the procedure and she got to know that she needs a statement from a third person saying that our relationship had broken down about nine months prior so they can get a quick divorce?"
After dealing with this evidence, the trial judge stated that she was not able to accept that the accounts the applicant gave to the experts in 2018 were entirely accurate or reliable, given the differences between these accounts compared with his earlier accounts and the other evidence. Her Honour referred first to the 000 call, which she recorded began with the applicant calmly telling the operator he had killed his wife and asking for the police to be sent and that an ambulance was not needed. Her Honour noted (at [165] of the trial judgment) that contrary to his later accounts, the applicant told the operator that "this" had happened only a couple of minutes ago. Her Honour also noted that he stated in the 000 call that the deceased was not breathing, that she had had an affair with one of his friends long ago, that she had said it was not happening anymore, and that he had checked her phone.
Her Honour then noted (at [167] of the trial judgment) that on arrest, the applicant "calmly" told police that he and the deceased had argued, that she had had an affair with one of his friends two years ago, and that he had asked and she said that it was over long ago. The trial judge stated that contrary to his later accounts and the other evidence, the applicant said that it was when he had come back that the deceased said that maybe they did not have a future together. Her Honour noted (at [170] of the trial judgment) that contrary to his later accounts and what was established on autopsy, the applicant said that he had used the knife only a "couple of times".
The trial judge made similar remarks in connection with the police interview, noting (at [179] of the trial judgment) that there was simply nothing in that account or the other evidence which provided a basis "for Mr Ahmed having had an expectation that when he returned to Australia, that Ms Elahi would share his desire to make the marriage work". Her Honour noted that on this account, the applicant returned to Australia in a positive frame of mind, despite he and the deceased having argued in January over him posting a photo of them together on his Facebook page.
The trial judge then dealt with the account recorded by Dr Nielssen, stating (at [184] of the trial judgment) that what he recorded in his report reflected an account that was "by then so different in relevant respects from those which he had given on that night, that its veracity is questionable". Once again, having regard to the view I have taken in relation to ground 1, it is unnecessary to set out the differences in detail, but it should be noted that her Honour recorded (at 184 of the trial judgment) that "[q]uite inconsistently with his account to police that he believed she was dead before he called 000", the applicant told Dr Nielssen that when he came back from the room where he went to smoke, the deceased said "'I am actually dying'. He then grabbed her in his arms and accessed her phone with her finger and rang 000 and asked 'can you send someone'".
The trial judge stated that the statement made by the applicant to Dr Nielssen that he had hope (for the marriage) on his return to Australia could not be accepted. Her Honour referred to his pursuit of internet searches about punishment for adulterous husbands and wives, stating (at [190] of the trial judgment) that whilst the applicant "may not have planned to punish Ms Elahi when he returned to Australia to pursue his aim of keeping her, despite knowing that she was intent on divorce, the notion of punishment for adultery was something which he had not only considered before he killed her, but actively investigated".
The trial judge conducted a similar analysis of the account given to Dr Martin, compared to the applicant's earlier account. It is unnecessary to set it out in detail.
The trial judge then reached the following conclusions (at [235]-[237] of the trial judgment): "[235] I am satisfied that the 14 dreadful wounds I earlier described do not, of themselves establish, on the balance of probabilities, that Mr Ahmed was then so substantially impaired by his abnormality of mind, that he could not control himself, he being unable to resist his impulse to hurt her. [236] That evidence is equally consistent with Mr Ahmed having rather not resisted his impulse to hurt Ms Elahi, given the jealousy, humiliation and rage which he described feeling, when he read those messages. Indeed, in my view the obvious ferocity of his attack, which left the tip of the knife broken between her teeth, is quite consistent with deliberate acts and not just a loss of control, as was contended for Mr Ahmed. [237] That conclusion is supported by the evidence that even though from July 2016 Mr Ahmed's condition deteriorated and it worsened in September 2016 when he saw Ms Elahi's letter, it later undoubtedly improved. By the time he left for Bangladesh after the second counselling, it appears to have improved significantly and while he still suffered the condition while he was there, it does not appear to have deteriorated again, before he killed Ms Elahi."
The trial judge rejected Dr Nielssen's opinion and expressed her conclusions in the following form (at [242]-[247] of the trial judgment): "[242] Dr Nielssen agreed that Ms Elahi's advice that there was to be a divorce, would have exacerbated his symptoms, but Mr Ahmed knew that this had been her position since before they separated in November. Dr Nielssen understood, as his report reflected, that Mr Ahmed's mood had improved before he returned to Australia, because the prospect of hope for the relationship had been held out to him. He agreed that the news that there was no hope, then caused an exacerbation of his symptoms. [243] But the difficulty with this understanding is that it is contrary to the evidence. As I have explained, Mr Ahmed simply had no basis for returning with such hope, given that he knew from November that Ms Elahi wanted a divorce and that she had made clear to him in their Facebook exchanges, that she had not changed her mind. [244] What he returned with and acted on, when they were confirmed by what he read in the text messages, were his suspicions about Ms Elahi's reasons for pursuing a divorce, her feelings for Mr Khan. [245] Mr Ahmed, however, told Dr Nielssen that his rage was triggered by what Ms Elahi had said about his parent's divorce. That seems rather implausible on all of the other evidence I have discussed. [246] Not only was Mr Ahmed well aware that Ms Elahi was intent on divorce, on his earlier accounts it was his suspicion that it was the continuation of her relationship with Mr Khan which was driving her desire for a divorce, which led him to assault her and threaten to kill her, in order to gain access to her phone. He then killed her when he read the text messages which confirmed that his suspicions had a foundation. [247] That is entirely consistent with him having deliberately acted on his jealousy and rage and the feeling he also described, of having been set up, rather than as the result of his impaired capacity to control himself, given that his condition and the abnormality of mind which it had caused, was not at that point very severe, as I have explained."
Finally, the trial judge stated (at [254] of the trial judgment) that even if she had come to the conclusion that at the time of the killing, the applicant was suffering from an abnormality of mind substantially impairing his capacity to control himself, she would have been "unable to conclude that the community's current standards would permit the result that Mr Ahmed be sentenced for manslaughter, rather than for Ms Elahi's murder".

The trial judge erred by failing properly to apply the principles of law relating to the silence of an accused person at trial, in that her Honour:

(a) failed adequately to direct herself as to the applicant's failure to give evidence;

(b) wrongly implied an expectation that the applicant would give evidence in support of his defence; and

(c) had regard to the applicant's failure to give evidence on the question of his guilt, contrary to authority holding that this is an irrelevant consideration save in rare and exceptional cases.

As the trial was a trial by judge alone, the provisions of s 133 of the Criminal Procedure Act 1986 (NSW) were applicable. Section 133 provides as follows: "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."
Section 133(2) required the trial judge to include the principles of law applied by her. This includes a requirement for the trial judge to give herself the same direction as would be given to a jury. Section 133(3) required the trial judge to take into account any warning which would have been required to be given to a jury.
The relevant requirements and the effect of non-compliance with them were set out by the High Court in Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 ("Fleming"). In dealing with the predecessors to s 133(2) and s 133(3), the former s 33(2) and s 33(3) of the Criminal Procedure Act, the Court made the following remarks: "[27] Fourthly, whilst they are differently framed, the requirements of s 33(2) and (3) are expressed in terms of legal imperatives and a failure to observe either or both of them is to make a wrong decision on a question of law within the second limb of s 6(1) of the Criminal Appeal Act. Such failure may also mean that justice has miscarried, within the meaning of the third limb, because justice according to law, to which the accused was entitled, included compliance with the mandatory requirements of s 33. [28] Fifthly, whilst s 33(2), when specifying that which a 'judgment' must include, does not use the expression 'reasons for judgment', it should not be taken as intending that the requirements of s 33(2) be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached. [29] Sixthly, the judgment may record what the judge regarded as a principle of law which then was applied, but the principle may have been erroneously formulated. There may have been a literal compliance with s 33(2), but by this means there is disclosed an error of law which, without there being a breach of s 33(2), attracts at least the second limb of s 6(1) of the Criminal Appeal Act. [30] Seventhly, if the judgment fails to show that the judge applied a relevant principle of law, two possibilities are presented. One possibility is that, notwithstanding such failure, the principle was applied. Upon that hypothesis, there has been a breach of s 33(2) by reason of the omission from the judgment. The other possibility is that the principle was not applied, with the result that, independently of the question of breach of s 33(2), there has been an error of law which may attract at least the second limb of s 6(1) of the Criminal Appeal Act. The obligation imposed by s 33(2) was to ensure that the judgment included all principles of law which the judge applied. Unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded. [31] Finally, there may be a breach of s 33(3) with respect to the requirement to take a warning into account. The present appeal is put as such a case. Section 33(3) is framed in a fashion which differs from that of s 33(2) and which emphasises the particular importance attached by the legislature to the requirements of the law with respect to warnings. Section 33(2) requires the inclusion of principles of law applied and of factual findings relied upon, whilst s 33(3) obliges the judge to take the particular warning into account. [32] The obligation imposed by s 33(3) 'to take the warning into account' is not only to be discharged but also to be seen to be discharged. The means by which the obligation may be discharged is that indicated in s 33(2), namely the inclusion in the reasons for judgment of the particular requirement for a warning among the principles of law applied by the judge. The various requirements that warnings be given have been expressed as rules of law or practice. The failure to give such a warning does not always lead to the setting aside of a conviction. But that does not mean that it is not a principle of law within the terms of s 33(2). The judge is obliged by s 33(3) to take the warning into account and in doing so the judge applies a principle of law. [33] The result is to require the recording and heeding of a warning, if one is called for in the particular case, and the giving of effect to it in a real sense by stating reasons why, notwithstanding the warning or as a consequence of it, a particular verdict is reached. A mere recording or statement of it, without more, would amount to an empty incantation. If these criteria are not satisfied in a particular case, then the judge is to be taken as not discharging the obligation imposed by s 33(3) that the warning be taken into account." (Footnotes omitted.)
The principles were restated in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 in the following terms: "[6] Section 133 of the Criminal Procedure Act 1986 (NSW) provides that a judge who tries a criminal proceeding without a jury may make any finding that could have been made by a jury on the question of guilt of the accused and that such a finding has the same effect as a verdict of a jury. In that sense, 'finding' means an ultimate finding of guilt as opposed to a finding of fact leading to the finding of guilt. The section also provides that the judge must include in his or her reasons for judgment the principles of law applied and the findings of fact on which the judge relies; and that, if any Act or law requires a warning to be given to a jury in such a case, the judge is to take the warning into account in dealing with the matter. As was held in Fleming v The Queen, the requirement to take a warning into account necessitates that the judge expressly refer to the warning in his or her reasons for judgment."
In the present case the applicant contends that the trial judge failed to direct herself to the effect that no adverse inference could be drawn from the failure by him to give evidence, or failed expressly or impliedly to have regard to that warning in delivering her judgment.
The requirement to give a warning of that nature has been referred to in a number of cases. In Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25 ("Azzopardi"), the plurality stated the principle as follows (at [51]): "[51] In the course of argument of the present matters it was suggested that if a judge said nothing to the jury about the fact that an accused had not given evidence, the jury may use the accused's silence in court to his or her detriment. Plainly that is so. It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make‑weight in assessing whether the prosecution has proved its case beyond reasonable doubt. It by no means follows, however, that the judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence." Whilst more recently, the Court in GBF v R [2020] HCA 40; (2020) 94 ALJR 1037 succinctly stated the position in the following terms: "[23] Such a process of reasoning is false because it proceeds upon a view that the accused may be expected to give evidence. And in an accusatorial system of criminal justice, which places the onus on the prosecution to prove the allegation that it brings, rare and exceptional cases apart, there can be no expectation that the accused will give evidence. It is the recognition of the attractiveness of reasoning that an allegation is more likely to be true in the absence of denial that explains the need in almost all cases in which the accused does not give evidence to give a direction along the lines proposed in Azzopardi." (Footnotes omitted.)
Such a warning is of particular importance in a case such as the present where the onus lay on the accused to establish the defence. In such a case it seems to be essential to warn against a path of reasoning that the failure to give evidence was a relevant factor in considering whether the onus had been discharged.
The Crown submitted that there was no failure to give a mandatory direction. She submitted that the right to silence direction given by the trial judge carried with it by necessary implication a warning against drawing an inference unfavourable to the applicant from his failure to give evidence. In her written submissions, the Crown submitted that the comments upon which the complaint was based occurred early in the judgment and there was no suggestion in the judgment that any adverse inference was drawn from the applicant's failure to give evidence.
At the hearing, the Crown submitted that a warning against drawing an adverse inference from an accused's failure to give evidence was not required in every case. She submitted that the cases where it was required were cases where there was evidence that the accused could have contradicted but did not do so. She submitted that the directions given were adequate and that the judge was entitled to say that the applicant's untested court statements should be treated with caution.
Notwithstanding these submissions, I do not think the trial judge complied with the requirement in Fleming and there was thus an error within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW). Accepting that the warning against drawing an adverse inference from the accused's silence is not a mandatory direction, as was pointed out in Azzopardi in the passage to which I have referred, it is one which is required in most cases. As I have also pointed out, it is of particular importance in the case such as the present where the onus of proof on the central issue between the parties lay on the accused.
No such warning was expressly given. Whether it could be implied from the right to silence direction depends on the context in which that direction was given.
In [11] of her Honour's judgment, which I have set out at [8] above, the trial judge stated that the applicant had "elected not to give evidence, despite the onus which fell upon him". That involves a type of reasoning that a warning against drawing an adverse inference from the accused's silence is designed to prevent.
It is in that context that the right to silence direction needs to be considered. As I indicated, it does not contain an express warning against drawing an adverse inference. Further, immediately after it, under the heading "Assessment of Mr Ahmed's various accounts", the trial judge again noted (at 34 of the trial judgment) the accounts given by the applicant had "not been tested in cross-examination".
It must also be noted that her Honour again referred to the fact that the applicant's accounts were untested, although stating that it was "his right not to give evidence" (at [40] of the trial judgment, see at [14] above), and indeed she stated that she had some doubt about the reliability of the agreed facts (see at [16]-[17] above).
Thereafter, importantly, her Honour rejected the truth of the applicant's assertions to Dr Nielssen that he had hope of continuing his marriage on his return overseas, again emphasising the divergence in the various accounts given by him (see at [26]-[35] above). Whilst this was a perfectly acceptable course of reasoning, it is another area where it was important to emphasise that no adverse inference could be drawn from the applicant's failure to give evidence.
In these circumstances, I do not think that it can be implied that the trial judge warned herself of the need to guard against drawing adverse inferences from the failure of the applicant to give evidence.
This ground of appeal has been made out.

The verdict is unreasonable because the trial judge unreasonably rejected the opinion of Dr Nielssen

In considering whether it is appropriate to deal with this ground, it is important to bear in mind the matters that the applicant was required to establish to make good the defence. The trial judge conveniently set these out in her judgment (see at [9] above).
Her Honour was satisfied that the applicant suffered an abnormality of mind arising from an underlying condition. This was consistent with the evidence of Dr Nielssen and Dr Martin and was not a matter of controversy in the appeal.
Her Honour having rejected the evidence of Dr Nielssen, found it was not established that the abnormality substantially impacted the applicant's capacity to control himself. It was this conclusion to which this ground of appeal is directed.
However, her Honour also found that irrespective of whether she was correct on the second issue, she would have concluded that it was not established that the impact was so substantial as would warrant the applicant's liability for murder being reduced to manslaughter (see at [37] above).
In reaching this conclusion, her Honour stated that the question involved a value judgment which required community standards to be applied. This approach, with respect, was correct. It is well established that expert evidence has no role to play in this assessment: R v Byrne [1960] 2 QB 396 at 404; R v Trotter (1993) 35 NSWLR 428 at 431; Quinn v R [2018] NSWCCA 297 at [49]-[50]; Tarrant v R [2018] NSWCCA 21 at [79]-[80]. This is made clear by s 23A(2) of the Crimes Act.
Thus, even if the Court concluded that in dealing with the second issue the trial judge unreasonably rejected the evidence of Dr Nielssen, it would be necessary for the verdict to be set aside to conclude that the finding of the trial judge on the third issue was unreasonable. No submissions were directed to this question.
Faced with this difficulty, the applicant contended that if this ground of appeal was made out there should be a new trial in which the new judge (or a jury) could assess the third issue in the context of a correct finding on the second issue.
Whether this would be an appropriate course had this ground been made out but not ground 1, need not be determined. In light of the fact that, as a result of the applicant's success on ground 1, there will need to be a new trial, it is inappropriate for the Court to deal with what will be a critical factual matter in that trial.

Conclusion

In the result I would make the following orders: 1. Grant the applicant leave to appeal. 2. Quash the conviction of the applicant for the murder of Khondkar Fariha Elahi and order that there be a new trial.
GARLING J and WRIGHT J: We agree with the orders proposed by the Chief Justice. We wish to add these reasons with respect to Ground 1.
The applicant pleaded not guilty to murder but guilty to manslaughter. It was accepted by counsel for the applicant at the trial, in his opening statement to the trial Judge ("the Judge"), that the applicant was responsible both legally and morally for the death of his wife. The applicant's counsel told the Judge that the sole issue was whether the applicant had made out the partial defence of substantial impairment as contained in s 23A of the Crimes Act 1900 (NSW) ("the defence").
It was conceded by the Crown that, on the evidence, the applicant had an abnormality of mind arising from an underlying condition. This was the first of three matters which the applicant was required to prove in order to make out the defence.
The other two matters in issue were whether, at the time the applicant killed his wife, his capacity to control himself was "substantially impaired" by that abnormality of mind, and whether the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.
The onus of proving the defence falls on an accused on the balance of probabilities: s 23A(4) of the Crimes Act.

Course of the Trial

During the trial, the Judge was confronted with a mixture of facts derived from a range of sources which were relied upon by the applicant to make out the defence.
In deciding whether the applicant had discharged his onus, the Judge had to consider the range of facts which did not all point in the same direction and consider what weight ought to be attributed to various parts of the evidence.
The applicant had given an account of what had occurred when he made a call to the Emergency 000 number. His account to the operator was recorded and that call was tendered in evidence.
After the emergency call was received, the police attended at the applicant's home. One of the police who attended was Detective Senior Constable Starr. He interviewed the applicant about what had happened and recorded that interview on a voice file. This interview and a transcript were tendered.
After the applicant had been arrested and taken to the Parramatta Police Station, he took part in an electronically recorded interview with investigating police which lasted approximately 2 hours and 41 minutes. The transcript of 67 pages of that interview was tendered, as was the video recording of it.
There was also evidence about the applicant's account of what had occurred from two psychiatric experts - Dr Olav Nielssen and Dr Adam Martin. Both psychiatrists had interviewed the applicant for the purpose of preparing an expert report to be tendered in the proceedings. The applicant had given each of those experts an account of his background, his medical and psychiatric history, the events leading up to the killing of his wife and, speaking generally, the events surrounding that killing.
Her Honour accepted a submission made by the applicant's counsel that, in accordance with the decision of this Court in R v Welsh (1996) 90 A Crim R 364, the effect of s 60 of the Evidence Act 1995 (NSW) was that once admitted as a history given by the applicant to each of the expert psychiatrists, those histories were evidence of the truth of the contents of them. The source of these facts, namely the evidence of the expert psychiatrists, meant that the evidence was hearsay which may have called for the Judge to have given herself a warning under s 165(1)(a) of the Evidence Act.
Her Honour's task was made more complex by the fact that two documents recording extensive Agreed Facts were tendered as exhibits pursuant to s 191 of the Evidence Act. In considering these facts, it was necessary for the Judge to keep in mind the terms of s 191(2)(b) of the Evidence Act which provides that without the leave of the Court "evidence may not be adduced to contradict or qualify an agreed fact". At no time was the Court's leave sought pursuant to s 191(2)(b). Furthermore, evidence is not required to prove the existence of an agreed fact: s 191(2)(a); and, an agreed fact is one which is not to be disputed by the parties to the trial: s 191(1). These provisions were not specifically drawn to her Honour's attention.
The applicant did not give evidence in his case at trial.

Submissions at Trial

The transcript of the proceedings shows that the Judge was concerned, unsurprisingly, as to how she might correctly reason towards findings of fact in circumstances where the factual evidence contained in the sources which we have enumerated above, was not always consistent and sometimes contradictory.
At the commencement of the Crown's address at the conclusion of the evidence, her Honour raised with the Crown prosecutor this issue and sought his assistance by way of submissions. What her Honour said was: "Of course, Mr Ahmed has a right to silence, which he didn't exercise at various times, but has exercised at trial because he hasn't given evidence. That has led to a situation where, I think it's five, different accounts which he has given about what happened on the night that he killed his wife, differ in some respects and that will have to be considered, I imagine, given what lies in issue, seemingly, between you. Some consideration will have to be given to those differences and what, if anything, is to be made of the fact that because Mr Ahmed elected not to give evidence, notwithstanding the defence which he advances and the onus which falls upon him, what is to be made of his accounts and the differences between them, given that, of course, the opinions which the experts have arrived at, which differ in party have been arrived at in the context of those untested accounts."
Her Honour sought the Crown's assistance by way of submission during the course of their address. The Crown did not return to those issues which her Honour had directly raised, although its submissions did deal with the question of which version of the facts was to be preferred by reference to other facts and circumstances. The Crown did not draw her Honour's attention to any legal principle, or direction of law, which her Honour was required to give herself in the circumstances with which she was confronted.
Counsel for the applicant made submissions to her Honour about the weight to be given to the hearsay evidence of the two expert psychiatrists in respect of what it was that the applicant had told them. He submitted that her Honour would not find that such hearsay evidence fell into the category of being generally unreliable and so worthy of a s 165 warning. Counsel referred her Honour to some obiter remarks of Hunt AJA in R v Wilson [2005] NSWCCA 20; (2005) 62 NSWLR 346 at [36]‑[38] which dealt with the application of such a warning.
The applicant's counsel submitted that her Honour would look at the evidence overall and come to a conclusion as to its reliability without having regard to the general proposition that hearsay evidence would ordinarily be unreliable.
Counsel for the applicant did not draw to the Judge's attention specifically any direction which would have been appropriate for her to give herself with respect to the fact that the applicant had not given evidence, nor how that fact was, as a matter of law, to be treated by her in weighing up the conflicting evidence.
In particular, neither counsel drew the Court's attention to the authorities discussed by the Chief Justice at [40] and [43] above.

Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50

The principle to be derived from Azzopardi is set out by the Chief Justice at [43] above. The majority in Azzopardi noted at [34] that the fundamental proposition from which the statement of principle derives is that a criminal trial is an accusatorial process in which the prosecution bears the onus of proving the guilt of an accused beyond reasonable doubt. The majority then said: "It is, therefore, clear beyond doubt that the fact that the accused does not give evidence at trial is not of itself evidence against the accused. It is not an admission of guilt by conduct …"
The majority also said that there could be no expectation that an accused would give evidence at trial. They drew attention to the radical differences between a criminal trial and a civil proceeding. In so doing, they drew attention to what was said in RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at 632 [26] about the drawing of an inference in a civil trial: "In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will therefore be open in such a case to conclude that the failure of a party … to give evidence leads rationally to an inference that the evidence of that party … would not help the party's case."
A reference to the judgment of Windeyer J at [321] in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 was added at the end of that quotation in RPS.

Discernment

The issue in this trial was not entirely the same as that discussed in Azzopardi. It was more nuanced. That was because the issue the Judge was considering here was not whether the prosecution had discharged its onus in proving the guilt of the applicant beyond reasonable doubt but, rather, whether the applicant had persuaded the Judge on the balance of probabilities that he had made out the defence.
But there are real similarities with the underlying formulation adopted in Azzopardi. First, the defence arises only in the context of, and as a part of, a single undivided adversarial criminal trial where the accused is not expected to give evidence and cannot be criticised for not doing so. Secondly, evidence led by the prosecution in proof of its case will almost always be relevant to, and relied upon by, an accused in proof of the defence. Thirdly, there is no mechanism in a criminal trial which would permit an accused to give evidence in support of a defence, without being open to cross-examination by the prosecution to assist it in the proof of its own case. Finally, although the onus of proof falls on an accused with respect to the defence, neither the statute providing for the defence nor any other common law principle, requires an accused to give evidence in order that the onus which falls upon them can be discharged.
In light of this, it follows that the fact that an accused does not give evidence in support of the defence, cannot, without more, give rise to a Jones v Dunkel inference being drawn or any other reasoning processes which adversely impacts, or which may adversely impact, on the discharge of the onus of proof.
One of the matters raised by the Judge when seeking assistance from the parties was, in substance, whether in considering the weight to be given to the accounts of the events narrated by the applicant to the expert psychiatrists, she was entitled to have regard to the fact that those accounts had not been attested by the applicant in evidence at trial, nor had they been subjected to being tested in cross-examination.
No authority was drawn to her Honour's attention dealing with that issue. No authority has been drawn to our attention on the hearing of this application which suggests the answer to this question.
Historically, at a time when an accused was able to make an unsworn statement, a trial Judge was permitted to inform the jury about the nature of the statement - namely, that it was unsworn and that it was not the subject of any cross-examination. The jury were instructed, however, that they should have regard to the unsworn statement of an accused as constituting a possible version of the facts, and that they were to accord it "… such weight as it appears entitled to in comparison with the facts clearly established by evidence.": Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 640-641 per Griffiths CJ, and at 646-650 per Barton J (O'Connor J agreeing).
Such a direction was regarded as an appropriate one because it provided guidance to a jury as to the nature of an unsworn statement and the weight which could be accorded to it. It was not seen to be an adverse criticism of the accused by reason of the fact that the accused had not entered the witness box and given sworn evidence, but rather had chosen to make an unsworn statement.
However, as earlier remarked, the present state of authority does not deal with whether a similar approach would be appropriate to be followed in, at least, a judge alone trial where a real issue exists about the weight to be given to accounts given by an accused prior to a trial commencing, in circumstances where an accused does not give evidence.
Whilst for our part, we see the good sense in a direction being given of a kind adapted from the approved approach in Peacock, since this was not a matter which was fully argued, we prefer to reserve our final determination of such an important issue until full argument is provided.
However, what is clear from this consideration is that the failure of the applicant to give evidence at his trial was not a matter which could be taken into account in any way which was adverse to him. Because of the complexity of the evidentiary issues and the risk of that occurring in the particular circumstances of this case, a clear and explicit direction which accorded with that formulated in Azzopardi was required to be given by the Judge so as to avoid falling into an error of law of the kind discussed in Fleming.
It is a matter of regret that counsel did not seek such an explicit direction from the Judge. However, the absence of such a direction amounts to an error of law with the result that the appeal must be upheld.
For these reasons, we agree with the orders proposed by the Chief Justice.

Amendments 01 December 2021 - Amended representation 01 December 2021 - Publication status amended 23 May 2022 - Corrected case citation for R v Ahmed (No 2) on coversheet and at [4]. 16 February 2023 - publication restriction lifted - judgment re-published. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 February 2023

Procedure Act 1986(NSW)

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