R v Ahmed

Judge alone trial

1. In February 2019, I refused Mr Ahmed's application for a judge alone trial, finding that the conclusion that the interests of justice required that he not be tried before a jury was not open on the evidence then led: R v Ahmed [2019] NSWSC 55.
2. Following the late service, however, only days before the trial was due to commence, of a large volume of documents contained in a device police had seized on Mr Ahmed's arrest, which included internet searches which he had conducted while he was in Bangladesh about punishing adulterous wives, the Crown did not oppose him being granted leave to make a second application for a judge alone trial, to which it then consented. The result, under s 132(2) of the Criminal Procedure Act 1986 (NSW), was that a trial by judge alone order had to be made. The trial thus proceeded the following day before me, as judge alone.
3. Section 133 of the Criminal Procedure Act must thus be observed, it providing that: "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."

The issues lying between the parties

1. Under s 18 of the Crimes Act the offence of murder is established, relevantly, when the Crown proves beyond reasonable doubt that it was the voluntary acts of the accused which caused the victim's death and that the accused committed those acts, either with an intent to inflict grievous bodily harm, or to kill.
2. Despite the presumption of innocence which applies in every criminal trial, in this case there was no issue that the Crown had met the onus which fell upon it.
3. 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.
4. On the evidence I will discuss, I am satisfied that the Crown has met the onus which falls upon it. Its case was also that it had proven beyond reasonable doubt that Mr Ahmed intended to kill Ms Elahi, which was established not only by all of the injuries which he inflicted, but was put beyond doubt by what he did after he stopped stabbing Ms Elahi, before he called 000, to which I will return.
5. There was also no issue that when he killed Ms Elahi, Mr Ahmed was suffering a mental illness, which the experts agreed was likely to have been an adjustment disorder, that being a form of depressive illness. They did not, however, agree about the extent of that illness, or its consequences.
6. The issue which now falls to me to resolve, is whether Mr Ahmed has established the partial defence which he advanced at trial under s 23A of the Crimes Act. There are also issues as to what should be made of Mr Ahmed's various accounts and which expert's opinion should be preferred, given all of the evidence received at the trial.

The nature of the s 23A defence

1. Section 23A requires that Mr Ahmed establish, on the balance of probabilities, that at the time that he killed Ms Elahi: 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.
2. The opinions of the experts are relevant to the resolution of the first two of these questions, but they are inadmissible on the third: s 23A(2). Even in relation to the first two questions I am not, however, bound to accept the experts' opinions.
3. Accordingly, if I find that there is other evidence which outweighs that of the experts; or that the facts differ from those on which they proceeded; or that the reasons which they expressed for their opinions, even having regard to their expertise, do not support their conclusions, I need not accept their opinions.
4. As to the first question, an "underlying condition" is a pre-existing mental or physiological condition. It does not have to be permanent, but it is not enough that it is a passing condition, or one that only lasts for a short time.
5. There is no issue between the parties, given the common views of the experts, that Mr Ahmed suffered such a condition, namely, a chronic adjustment disorder. The experts agreed that it was a depressive illness which had persisted for some 2 years before he killed Ms Elahi and that he had developed the condition in response to an adverse life event, namely, the breakdown of his marriage. They also agreed that its severity had fluctuated over that time.
6. I am also satisfied that the evidence establishes that Mr Ahmed did suffer such a condition. But for reasons which I will explain, I am not satisfied that it establishes that he suffered that condition for as long as the experts concluded, or that it was as severe as Dr Nielssen concluded, when he killed Ms Elahi.
7. In relation to the question of whether Mr Ahmed's condition resulted in him having an "abnormality of mind", it must be borne in mind that what is "normal", as opposed to "abnormal" in a person's capacity, differs widely in any group of people.
8. The term "abnormality of mind" means "a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal": R v Byrne [1960] 2 QB 396 at 403, adopted in Quinn v R [2018] NSWCCA 297 at [48]. This requires both a consideration of the mind's activities in all its aspects and a consideration of the extent to which the accused's mind is answerable for his physical acts, "which must include a consideration of the extent of his ability to exercise will power to control his physical acts". This is for me to determine.
9. In coming to my conclusion the expert evidence is of importance, but I must also take into consideration all of the evidence, including Mr Ahmed's acts, statements and demeanour. I am thus not bound to accept the expert evidence, if there is other material before me which, in my judgment, "conflicts with it and outweighs it": Byrne at 403. But what caused the abnormality of mind is a matter to be determined on the expert evidence.
10. The experts both interviewed Mr Ahmed in 2018 and were also instructed with much of the material which the parties led in evidence. On that material, they both came to the conclusion that Mr Ahmed did suffer an "abnormality of mind" from his underlying condition.
11. On all of the evidence I will discuss, I am also satisfied that when he killed Ms Elahi, he did suffer such an "abnormality of mind".
12. As to the second question, in issue is whether Mr Ahmed's abnormality of mind "substantially impaired" his capacity to control himself. The experts did not agree about this. This issue must also be resolved on all of the evidence, bearing in mind that in s 23A "substantial" and "impaired" have their normal meaning.
13. Thus Mr Ahmed must prove on the balance of probabilities, that the result of his impairment was that when he killed Ms Elahi his capacity to control himself was not only less or lower than the normal range, but also that the deterioration in his capacity was of substance and not slight, or insignificant. That is also in issue.
14. For reasons which I will also explain, I have concluded that Mr Ahmed did not meet this onus.
15. The third question involves a value judgment, which requires community standards to be applied. That is because the law recognises that a person who suffers from an abnormality of mind which impairs the capacity to control him or herself is less responsible, according to the standards prevailing in our community, than a person who has full capacity in that respect.
16. Thus, when considering the third question, I am obliged to apply the standards which I regard as current in the community, in determining whether Mr Ahmed has established that his impairment was so substantial, that his liability to punishment should be reduced from that which would follow from a conviction of murder, to that which would follow from a conviction of manslaughter.
17. That is also in issue.
18. What I must finally resolve is thus whether Mr Ahmed has met the onus of establishing, on the balance of probabilities, that he not only suffered an abnormality of mind caused by his underlying condition, but that when he killed Ms Elahi that abnormality substantially impaired his capacity to control himself, with the result that he should not to be condemned or blamed as Ms Elahi's murderer. But that rather, he should be treated as having been guilty of the less serious offence of manslaughter.
19. For reasons which I will explain, I am also satisfied that Mr Ahmed has not met this onus.

Other applicable principles of law

1. The other principles of law which I am bound to apply in arriving at my conclusions, include the following: 1. Onus - the onus of establishing the partial defence of mental impairment on the balance of probabilities falls on Mr Ahmed. No onus falls on the Crown to prove that this defence has not been established. 2. Impartiality - in arriving at a verdict I must act impartially and dispassionately, only on the evidence received at the trial; without prejudice or sympathy to either Mr Ahmed or Ms Elahi; not letting emotion sway my judgment; and putting aside anything else I heard about the matter, beforehand. 3. Verdict - A true verdict according to the evidence and the law is what I must arrive at. 4. Evidence - The issues lying between the parties must be resolved on all of the evidence, but that does not mean that I have to resolve all of the questions or inconsistencies which I consider might have been raised by the evidence, or which conceivably arise about the facts. 5. The evidence which I accept and that which I reject may be based on all manner of things, including what a witness had to say; the manner in which the witness said it; the general impression which he or she made when giving evidence; and my assessment of the other evidence, including that given by the other witnesses and the various other documents and material in evidence. 6. In the case of conflicts it is for me to decide whether they are important to resolve, or unnecessary, given the views which I reach about other parts of the evidence, when I assess the evidence and the cases which the parties have advanced. 7. If, however, I consider that a particular piece of evidence is important and an issue about it has to be considered and resolved, that is a matter for me. 8. All of the evidence must be assessed in the same way. The honesty and accuracy or reliability of the evidence must be assessed, using common sense and experience. 9. It must be borne in mind that there is a difference between honesty and reliability. A person might honestly believe what he or she said about what he or she heard or saw and yet not be reliable in recollection, perhaps because of errors in observation, or of recall, or because of an inability to describe what they heard or saw. This might become apparent, when other objective evidence, which has to be assessed is considered. 10. It is a matter for me to decide whether or not I accept the evidence given by any witness. If I conclude that particular evidence is not truthful or reliable, I will not take it into account in determining whether Mr Ahmed has established his defence. 11. The ultimate decision as to what evidence I accept and what I reject is mine. In arriving at my conclusions I may also take into account relevant parts of other evidence, including that of other witnesses and the facts which are not in dispute, in deciding whether to accept or reject a particular witness' evidence, or a particular part of their evidence, or in deciding how persuasive I find that evidence to be. 12. In making these decisions I will have regard both to other evidence which corroborates or confirms, or evidence which casts doubt on the evidence which a particular witness has given. 13. I am also not obliged to accept the whole of the evidence of any one witness. I may accept some parts of a witness' evidence and reject other parts, if I find some part of that evidence to be unreliable. Or I might not accept part of a witness' evidence, because I consider that the witness had some motive to conceal, or to embellish the evidence which he or she gave, or to distort the truth. 14. The fact that I do not accept a portion of the evidence of a witness does not mean that I must necessarily reject the whole of the witness' evidence. I may accept the remainder of that witness' evidence if I think it is worthy of acceptance. 15. Inferences - in drawing inferences I must be satisfied that they are reasonable ones to draw from the facts that I find established by the evidence. It is essential to examine the evidence with care and to consider whether it is reliable, before drawing any conclusions from facts which I find established. This requires a process of reasoning undertaken with care and logic, avoiding speculation or conjecture to fill in any gaps in the evidence, but it is up to me to decide whether I accept particular evidence and if I do, what weight, or significance, it should have. 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. 18. Prior good character - There is no issue that before he killed Ms Elahi, Mr Ahmed was of prior good character, having neither a criminal record nor any history of domestic violence, apart from the one occasion in 2016 when he admitted punching a wall during an argument, breaking bones in his hand. 19. As the parties agreed, Mr Ahmed's prior good character may be taken into account in his favour in two ways. First, in order to use the evidence to reason as to the improbability of Mr Ahmed deliberately causing the death of Ms Elahi, whilst not substantially impaired by his underlying mental condition. Secondly, in assessing the credibility of his representations to police and medical professionals, including Dr Martin and Dr Nielssen, after his arrest. 20. The expert evidence - the experts have specialised knowledge and so were able to give evidence about their opinions on relevant matters, which were within their particular area of expertise. While other witnesses may speak usually only as to facts, that is, what they saw or heard or otherwise experienced directly, and are generally not permitted to express their opinions, such experts may give opinion evidence because their training and experience enables them to give opinions about matters outside the range of experience of ordinary members of the community, including judges such as I. 21. It must be borne in mind, however, that the value of any expert opinion is very much dependent on the reliability and accuracy of the material which the experts used to reach their opinions and that my conclusions must be based on all of the evidence, which was not available to the experts. 22. The experts agreed about some matters and so I would be slow not to accept those opinions. But if, having given the matter careful consideration, I do not accept the evidence of either expert, or any part of their evidence, I do not have to act upon it, even if unchallenged. 23. Thus, if I find that the facts upon which either expert's opinion was based, did not accord with the facts as I find them to be, I would not accept the opinion. I am also, to a degree, entitled to take into account common sense and my own experiences, if they are relevant to the issue upon which the expert evidence relates. 24. I must resolve the matters about which the experts did not agree, bearing in mind, however, that they were both experts were well qualified and impartial. I would not, however, accept either expert's opinion, if I concluded that the opinion did not fit with other facts which I have found proven. 25. The parties' cases - In arriving at my conclusions I must not only give careful attention to all of the evidence, not only that which the parties have particularly addressed, but also to the cases which they have each advanced by the submissions which their counsel made, especially about the matters which are in issue. 26. If the partial defence is not established - if I am are not satisfied that Mr Ahmed has proven on the balance of probabilities all of the elements of the s 23A defence he advances, then I must find him guilty of murder.

Has Mr Ahmed established the partial defence?

1. In coming to a conclusion about whether Mr Ahmed has met the onus which falls upon him, it is necessary for the relevant facts to be found and the issues lying between the parties about Mr Ahmed's accounts and the experts' competing opinions to be resolved.

Findings on the agreed facts

1. One difficulty in determining whether Mr Ahmed established his defence was that it is necessary to make findings of fact in circumstances where the parties not only agreed many of the facts, but where what they agreed departs in relevant respects from some parts of earlier accounts which Mr Ahmed had given, about how he came to kill Ms Elahi. The experts considered three of those accounts and the final two appear in their reports, which are all in evidence.
2. Mr Ahmed's accounts are also in some relevant respects different from each other, as well as from other unchallenged evidence.
3. The agreed facts in large part reflect the accounts which Mr Ahmed gave on the night he killed Ms Elahi. They do not adopt aspects of what he later told Dr Nielssen and Dr Martin and upon which they arrived at their opinions.
4. It was not accepted for Mr Ahmed that by finally agreeing to facts which did not contain aspects of the histories which he had given the experts, that he had accepted that parts of what he had told them, were untrue. As I will come to explain, however, it is difficult to see how some aspects of the agreed facts and his earlier accounts can otherwise be reconciled.
5. 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.
6. As discussed in R v Welsh (1996) 90 A Crim R 364, when evidence of unsworn histories given by an accused are admitted into evidence, the effect of s 60 of the Evidence Act 1995 (NSW), is that they are evidence of the truth of that history: at 369. But this: "does not invest that evidence with any greater weight than the direct material from an accused in an unsworn statement that what he told the doctors was the truth. In each case there is some evidence of the fact. The weight to be afforded to a non-contemporaneous history given to the doctors after he had been charged with murder is unlikely to have been thought by the jury to be great and certainly no more than that of an unsworn statement.": at 371.
7. In a jury trial, a warning may be given under s 165 of the Evidence Act, that such unsworn, untested hearsay evidence may be unreliable and that its weight is a matter for the jury to determine: R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20 at [39]. In this case the weight to be given to the unsworn accounts Mr Ahmed has given, falls to me to determine. In undertaking that exercise, what the parties have agreed, must be taken into account.
8. Having considered the facts agreed as well as Mr Ahmed's various accounts and the objective evidence, I indicate that but for their agreement about the facts, I would not have been able to come to important findings which support the partial defence which he advanced. That is because I am satisfied, for reasons which I will explain, that those accounts are not entirely reliable.
9. Notwithstanding Mr Ahmed's prior good character, which I accept makes it less likely that he would give false accounts about what he did to Ms Elahi, on his accounts alone I would not have found that he repeatedly stabbed Ms Elahi in one episode of murderous rage, only after she had given him access to her phone and he had read the text messages she had recently exchanged with Mr Khan, confirming his suspicions that her relationship with Mr Khan continued.
10. That is because while, as was submitted for Mr Ahmed, some parts of his accounts were supported by the evidence of witnesses called by the Crown, other parts were not.
11. Thus, for example, Mr Ahmed's account that Mr Khan had told him and another friend about an earlier episode of infidelity and that in the latter half of 2016 he was adversely affected at work by his depressed condition, was supported by the evidence of the witnesses. But that he had been so affected in 2014 and 2015, was not.
12. Also relevant is that Mr Ahmed's 2018 accounts to the two experts departed in relevant respects from his earlier accounts, particularly as to the circumstances in which he made the 000 call, which favoured the partial defence which he advances. In assessing those accounts, which affected the experts' opinions, that they were given long after he had been charged with murder and treated for his depression, had to be taken into consideration.
13. Further, although Mr Ahmed's account that he only stabbed Ms Elahi after he read the text messages was consistently given, this sequence of events seemed quite improbable, given what he otherwise described having done to Ms Elahi and what the objective evidence established.
14. The objective evidence included that Ms Elahi's phone could only be activated by 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 then intimate nature of that relationship; and that as well as the stab wounds Mr Ahmed inflicted to many different parts of Ms Elahi's body, which caused the dreadful injuries from which she died, Mr Ahmed had also inflicted many other injuries.
15. There was no issue that Mr Ahmed used Ms Elahi's thumb to activate her phone, believing that she was already dead, when he made the 000 call and that before, he had also accessed their Facebook accounts. It is only his accounts, however, upon which the agreed fact that it was only after Ms Elahi had given him access to her phone and he had read the text messages that he stabbed her, rests.
16. On all of the other evidence, however, that Ms Elahi so gave Mr Ahmed access to her phone seems doubtful, 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. Logically they were rather likely to heighten Ms Elahi's efforts at resistance, consistent with the other injuries which she suffered. That Mr Ahmed used her thumb to access her phone when she was no longer capable of resisting him, was thus clearly possible, on all of the evidence.
17. In the result, I am not satisfied that Mr Ahmed's accounts were either entirely accurate, or reliable.
18. Nevertheless, the parties have agreed that Mr Ahmed did not stab Ms Elahi until after she had given him access to her phone. In the face of that agreement, I accept that a finding favourable to his defence must be made about the time and circumstances in which he stabbed Ms Elahi.
19. That is because these proceedings are adversarial, it being my function only to determine whether Mr Ahmed has met the onus which falls upon him, by resolving what lies in issue between the parties on all of the evidence, which includes the facts which they have agreed.
20. Accordingly, I make findings in accordance with the agreed facts as follows: 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' 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: 1. Right ear - 40 x 15mm c shaped incision, extending to the cartilage. 2. Right posterior neck - 36mm horizontal stab wound, extending through the muscles of the posterior neck to the cervical vertebrae. 3. Right posterior neck - 36 x 4mm horizontal stab wound, extending through the muscles of the posterior neck to the cervical vertebrae. 4. Right upper back - 29 x 8mm irregular incised wound, extending into subcutaneous fat. 5. Right upper back - 32 x 5mm gaping stab wound, extending into subcutaneous fat. 6. Right upper back - 42 x 20mm gaping stab wound, extending into the soft tissue of the neck. 7. Right upper back - 36 x 15mm gaping stab wound, terminating in right scapula (fractured). 8. 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. 9. Right lateral back - 9mm incised wound, extending into subcutaneous fat. 10. Right lower back - a cluster of superficial incised wounds and red abrasions from 8 x 2mm, up to 20 x 8mm 11. Left lower back - 40 x 20mm vertical gaping stab wound, through right psoas muscle into the abdomen, into, but not through, the jejunal wall. 12. Right thumb - 15 x 10mm irregular incised wound, extending into subcutaneous fat. 13. 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. 14. Right upper chest - 55 x 20mm gaping stab wound, extending into right pleural cavity between ribs 3 and 4. 1. The following blunt force injuries were also found: 1. Head and Neck 1. Small tan abrasions just lateral to the right eye, on right upper cheek and on right side of jaw. 2. Contusion on deep surface frontal scalp. 1. Torso 1. 40 x 10mm red-purple bruise/abrasion on right upper chest. 1. Upper limbs 1. Bruise and abrasion on left upper arm. 2. Bruises on right upper arm, forearm and wrist. 1. Lower limbs 1. Abrasions on anterior right knee.

The experts' opinions

1. It was Dr Nielssen who first twice interviewed Mr Ahmed in April and May 2018. I will return to the account which Mr Ahmed then gave him, but note at this point that Dr Nielssen diagnosed Mr Ahmed to have had a clinically significant response to an adverse life event, becoming depressed after his wife told him that she did not want to continue the marriage; that it became worse after he discovered that she was having an affair; and that it became acute when he read the text messages on her phone, after she had assured him that it was over.
2. He noted that Mr Ahmed was not especially depressed on interview and his mood was then in proportion to his circumstances.
3. Dr Nielssen concluded that Mr Ahmed did not have a mental illness of the kind which deprived him of awareness that his actions were wrong and so had no defence of mental illness. But he did consider that Mr Ahmed would be able to raise a s 23A offence, explaining: "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."
4. As I will explain, these conclusions rest on an understanding of the relevant facts which is not consistent with the agreed facts, or supported by other evidence, including Mr Ahmed's earlier accounts.
5. Dr Martin concluded that it was plausible and probable that Mr Ahmed was distressed by the status of his relationship over at least 2 years, during which he sought medical attention and was referred for a mental health plan and relationship counselling. He considered that an extreme emotional response to an identified stressor such as relationship conflict could reasonably be called a chronic adjustment disorder, that being a greater than expected emotional reaction to the stressor, with experience of problems such as low mood, anger or anxiety. He considered that an alternative diagnosis might be that Mr Ahmed suffered a major depressive disorder.
6. It was Dr Martin's opinion that: "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."
7. In the joint report the experts agreed that when he killed Ms Elahi, Mr Ahmed 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.
8. Mr Ahmed's reported symptoms included distress, anxiety, sleep disturbance, impairment in concentration, loss of appetite and weight and fatigue, which began in early 2015. In May 2015, his GP referred him for counselling for symptoms of depression.
9. Mr Ahmed's mental state fluctuated for the next 2 years, depending on his perception of the state of the relationship and was probably affected by an acute exacerbation, triggered by the shock of discovering lewd text messages, after he returned to Australia, in the hope of resuming the relationship.
10. In answering the question of whether Mr Ahmed's condition was operative at the time he killed Ms Elahi, so as to "substantially impair" him, the report indicated: "… the doctors noted that in accordance with section 23A of the Crimes Act, the ultimate issue as to the availability of the defence of substantial impairment by abnormality of mind is a matter for the Court. However, both doctors agreed that depressive conditions can result in an abnormality of mind that can affect the perception of events, because of the morbid perception of themselves, their surroundings and their future prospects that is typical of people with severe depression. We agreed that severe depression can also affect a person's ability to judge right from wrong, because of the negative perception of events in states of severe depression. Mr Ahmed reported feeling as though he had been tricked and demeaned by his wife, and also reported the perception that she was trying to push him to commit suicide. Severe depression can also affect a person's ability to exercise proper control over their actions because of the irritability and indifference to the consequences of any actions associated with severe forms of depression. 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. 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 up until the acute argument over the phone. However, he thought that Mr Ahmed was probably chronically vulnerable to distress and over-reacting angrily to perceived slights in the context of arguments associated with the relationship break-down. Dr Martin was of the opinion 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, and could skew their sense of right and wrong, 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."
11. After the joint report both experts considered the evidence that while in Bangladesh before he returned to Australia in 2017, Mr Ahmed had conducted internet searches about punishment for adultery. In their oral evidence both experts said that this was consistent with his illness and his continuing rumination about its cause, namely, the state of his marriage.

The Crown

1. The Crown's case was that there were differences in Mr Ahmed's accounts, for example the second slap which he told Dr Nielssen about in 2018, when he said that the argument which led to Ms Elahi's death had lasted one, possibly two hours, which showed that he had then augmented his earlier accounts.
2. It was submitted that the things which Mr Ahmed told Dr Nielssen which were adverse to his interests, would be accepted as reliable. But those which were favourable to his defence would not be accepted as true, particularly what had prompted him to make the 000 call.
3. There being no issue as to the cause of death and given Mrs Elahi's injuries, it was also submitted that the Crown had proven beyond reasonable doubt that Mr Ahmed had acted with an intention to kill, despite what he had claimed when he was interviewed by police. That intention was established by the weapon he had used; the number and nature of the significant wounds he had inflicted to Ms Elahi's neck, chest, back and cheek, with the tip of the knife left between Ms Elahi's upper teeth; and by what was agreed Mr Ahmed also did, before he made the 000 call.
4. It was also contended that it would be concluded that Mr Ahmed had not suddenly given way to an impulse, or had a sudden loss of control, upon seeing the text messages. The context of the stabbings were submitted to be critical to a determination of his state of mind and any causal connection between the psychiatrists' diagnosis and his actions.
5. It was also relevant that Mr Ahmed had told Dr Nielssen that he was "furious", even before he sighted the text messages. His accounts were not entirely reliable and involved some exaggeration, but it was significant that what he had described was an ongoing and escalating argument, prior to reading the text messages. Even before that, however, he had assaulted Ms Elahi, causing significant injury to her ear and he had also threatened her with the knife. That was not accounted for by any reaction on his part to having read the text messages, upon which Dr Nielssen had placed some significance, Mr Ahmed having told him that he felt humiliated by what he had read.
6. It was also submitted that absent Mr Ahmed's violence, there was nothing remarkable about his feelings of humiliation, in the circumstances of having discovered infidelity. Further, developing an adjustment disorder in response to an adverse life event such as marital breakdown, was very common, on Dr Martin's evidence.
7. The issue as to the severity of Mr Ahmed's condition and whether it warranted a reduction in his sentence for murder to manslaughter, had to be approached in the way discussed in Quinn at [50], where the observations of Hunt CJ at CL in R v Trotter (1993) 35 NSWLR 428 at 430 in relation to the requirements of s 23A were adopted. Namely: "The particular aspects of mind to which attention is usually paid in relation to this defence are the accused's perception of events, his ability to form a rational (or sensible) judgment as to whether his actions were right or wrong, and his capacity to exercise willpower to control his physical actions in accordance with rational (or sensible) judgment. Such perception, ability and capacity vary widely in normal people. An abnormality of mind exists where there is a deviation from the range over which they may vary in normal people or persons' mental responsibility for his actions concerns the extent to which his mind is answerable for his physical acts and it too involves the extent of that person's ability to exercise willpower to control his physical actions: R v Byrne [1960] 1 QB 396 at 403. That mental responsibility is impaired if it is diminished by reason of that abnormality of mind. Whether the cause of the abnormality of mind falls within the terms of s 23A requires expert medical evidence: R v Byrne (at 403), and such evidence is relevant to the other matters as well. Although the word "responsibility" in the phrase "mental responsibility" appears to introduce a non-medical value judgment, an expert medical witness would in my view be able to give evidence that, for example, the accused's perception of events or his capacity to exercise willpower to control his physical actions was impaired. But the tribunal of fact is not bound to accept the medical evidence where there is other material before it which, in its judgment, conflicts with it and outweighs it: ibid (at 403). Such material includes the nature of the killing, the conduct of the accused before, at the time and after the killing and any history of mental abnormality: Walton v The Queen [1978] AC 788 at 793. The tribunal is in any event entitled to consider the quality and the weight of the expert medical evidence: ibid (at 793). The "crucial" question in the defence of diminished responsibility is, however, whether the impairment of the accused's mental responsibility for his act was substantial: R v Byrne (at 403). Some impairment is not sufficient; if the abnormality of mind did not really make any great difference, even though it may have made it harder for the accused to control himself, the impairment is not substantial: R v Simcox (Court of Criminal Appeal of England, The Times, 25 January 1964, unreported), quoted in R v Lloyd [1967] 1 QB 175 at 181. To be substantial, the impairment may be less than total, but it must be more than trivial or minimal: R v Lloyd (at 178-179). It was held in R v Byrne (at 404) that medical evidence is relevant to this question as well, but not decisive of it. The Court of Criminal Appeal pointed out (at 403-404) that the question involves matters of degree, and that it is one which is essentially for the jury. And, as the question is not merely a medical one of whether there was an impairment but also whether that impairment can "properly" be called substantial, it was pointed out (at 404) that this is a matter upon which juries may quite legitimately differ from the medical experts: see also R v Lloyd (at 179). It is often put to juries that an impairment is substantial if it is such as warrants the reduction of the crime from murder to manslaughter: R v Ignjatic (1993) 68 A Crim R 333 at 346. Those criteria demonstrate why expert medical evidence is not really of great assistance in determining this crucial question of whether the impairment is substantial. The doctors are obviously qualified to say whether the extent of the particular impairment to the accused's perceptions, judgment and self-control is slight, moderate or extensive, or somewhere in between, but whether that impairment to the accused's mental responsibility for his actions may "properly" be called substantial (in the sense of being such as to warrant the reduction of the crime from murder to manslaughter) is not a matter within the expertise of the medical profession. That is a task for the tribunal of fact, which must approach that task in a broad common-sense way: R v Byrne (at 404); Walton v The Queen (at 793). It involves a value judgment by the jury representing the community (or by a judge where there is no jury), not a finding of medical fact."
8. It followed that the limitations of the expert evidence had to be borne in mind, with the result that it would be concluded that on 18 February 2017, Mr Ahmed, who was already feeling furious and humiliated and had given Ms Elahi a glass of water after he had assaulted her, simply did not resist his impulse to kill Ms Elahi, rather than not being capable of resisting it, when he read the text messages.
9. That conclusion was supported by the context in which the argument on 18 February had occurred. In December 2016 and January 2017 Mr Ahmed had already been considering punishing Ms Elahi, when he made his internet searches. At that time he must have been aware that he was "not travelling well", given the depression he said he had been suffering, for which he had not pursued treatment. He was, however, well enough to continue functioning otherwise, including planning to pursue a business in Bangladesh and resuming work in Australia.
10. While the evidence established that Mr Ahmed's mental health had fluctuated from the second half of 2016, it was before he went to Bangladesh in November that he was worse. By contrast, on his return in February he was enthusiastic about his business plans and while on 17 February he sounded flat when he spoke to his work colleague, he sounded normal while discussing with his friend, Ms Elahi's desire for a divorce.
11. Dr Martin's evidence that the objective evidence of Mr Ahmed's impairment had to be assessed made common sense and would lead to the conclusion that he suffered no substantial impairment which was causally connected with Ms Elahi's death.
12. The evidence was that Mr Ahmed was not then a man devoid of hope, but actively pursuing plans for significant aspects of his life. He had brooded over his personal situation and then got into a rage in his argument with Ms Elahi, because he wanted to maintain the marriage, given what he had invested in it. Given that he had described stabbing Ms Elahi while she said repeatedly "forgive me Rasel", his account that he had not intended to kill her, could not be accepted as candid.
13. What Mr Ahmed did to Ms Elahi was only consistent with he then having had an intention to kill her, as his other actions before he called 000 confirmed. If the truth had been that he made that call in response to Ms Elahi telling him that she was dying, as he told Dr Nielssen, it was likely that he would have told police about this during his interview.
14. While no doubt Mr Ahmed was "looking through a gloomier foggy lens" because of his mental illness, he was otherwise functioning normally when he acted on his rage and humiliation and killed Ms Elahi in circumstances where he was capable of having walked away, had he wanted to resist his base instinct to act on those feelings.

Mr Ahmed

1. For Mr Ahmed it was submitted that it must not be overlooked that what he had to establish was that he was "substantially", not "grossly" impaired, that falling somewhere between more than trivial, but not total. This was a question of degree, to be resolved by weighing all of the facts, including the experts' opinions, in order to determine where in the range of impairment Mr Ahmed fell, when he killed Ms Elahi.
2. It was accepted that in resolving this, which went to the second question arising under s 23A, the approaches discussed in Welsh and Wilson required that I make an assessment of the reliability of Mr Ahmed's accounts, taking into account corroborative material, in arriving at a conclusion.
3. In so far as there were variations in the accounts which Mr Ahmed had given, it was argued that they would have to be of some substance and significance to the issues which have to be determined, before they were taken into account, especially given the facts which the parties had agreed, which "corroborate and confirm" much of what Mr Ahmed had said.
4. Thus, it was submitted, if an important consideration was why Mr Ahmed called 000, account would be taken of the time that he gave his accounts to the psychiatrists, some time after he had killed Ms Elahi and been diagnosed to be suffering an adjustment disorder, while he was in custody, where he had had had time to ruminate.
5. It was also submitted that the variations in Mr Ahmed's accounts were explicable and did not suggest that he was trying in some way to be disingenuous, or that the scenario he had advanced was devoid of reliability. Account would also be taken of the fact that much of what he had said in the police interview was corroborated by other objective evidence led at trial, including things which were adverse to him.
6. It was also relevant that from the outset, Mr Ahmed had accepted his legal and moral reasonability for killing Ms Elahi. While relevant disparities in his accounts had to be weighed up, the totality of what he had said needed to be considered, especially given the competing views which the experts had arrived at. Relevant to this assessment was also Mr Ahmed's prior good character, which included no prior criminal offending or violence, before he killed Ms Elahi.
7. As to Mr Ahmed's prior internet researches into punishment, it was submitted to be relevant both that the Crown did not rely on them to establish premeditation and that the evidence did not establish what he had read on the sites he accessed, or how long he had remained on those sites.
8. On the expert evidence there was no issue that Mr Ahmed's adjustment order did constitute an abnormality of mind, which could impact on his control. It was submitted by reference to the oral evidence of Dr Martin and Dr Nielssen, that in determining where in the range Mr Ahmed's impairment fell, it would be accepted that his impairment made him prone to overreacting. This was relevant to his defence, being potentially consistent with a loss of control. On that point Mr Ahmed's account that it was the text messages which triggered his loss of control would be accepted, given his explanation of what it was in the messages, which had triggered his reaction.
9. It was accepted that Mr Ahmed's violence was disproportionate to what was in the text messages but this, of itself, was submitted to help establish that Mr Ahmed was unable then to control himself, as a result of his impairment.
10. The conclusion that Mr Ahmed was then acting as the result of a loss of control, rather than on a desire to kill, was also submitted to be supported by the suicidal state to which his impairment had earlier driven him. Of itself this established that his impairment was at the severe end of the range, notwithstanding the matters relied on by the Crown to establish that at the time he killed Ms Elahi, he was not so impaired that he could not control himself.
11. There was objective evidence that while in Bangladesh Mr Ahmed was not functioning normally, given the evidence that he was crying and sleep disturbed. That accorded with his emotionally distraught state when police attended in response to Ms Elahi's call, after he saw her letter to Mr Khan in September 2016. This, it was submitted, established that his impairment could be exacerbated by a trigger, as it had been again when he read the text messages in February 2017, his condition having fluctuated, including at this time, to the worst end of the scale.
12. It was also submitted that it was the symptoms which drove the abnormality of mind that led to Mr Ahmed's impairment and that the preponderance of the objective evidence established that those symptoms were operating, at the time that he killed Ms Elahi.
13. Other objective evidence was submitted to be found in the statement given by Mr Khan's wife as to Mr Ahmed's prior suicidal state; the evidence of his friend, who saw his state while he was in Bangladesh and described him as then being very sad, very down and quiet, that evidencing his social withdrawal; another account which described him then as having been shaken and traumatised; the evidence of his discussions with his co-worker and manager in February 2017; his problems at work in 2016; and his email exchanges with Ms Elahi, before he returned to Australia in February, which suggested that she was vacillating about the relationship continuing, which as he told Dr Nielssen, gave him hope.
14. As to the third question arising under s 23A, it was submitted that application of the community standard involved the exercise of a discretion, about which the authorities gave no real guidance.
15. It was also submitted to be relevant that this was not a case where there had been an ongoing history of domestic violence, which had culminated in a homicide "through escalation". Mr Ahmed was a man who had not only had no prior record of violence, but who had in the course of a 2 year relationship breakdown in circumstances of "serious infidelity" and then forgiveness, not acted violently towards either Ms Elahi or Mr Khan, but had considered taking his own life, while facing ongoing issues about what to do in the relationship.
16. The only explanation for what Mr Ahmed had done to Ms Elahi was thus the nature of his undoubted impairment, which had led to his loss of control. That, it was argued, warranted acceptance that application of community standards, would result in him being sentenced only for manslaughter.
17. While on the evidence Mr Ahmed had confronted Ms Elahi about his suspicions about her ongoing affair and had failed to seek treatment for his depression, it was relevant that he had pursued counselling and had written to her, before taking a break in Bangladesh. There he had said conciliatory and loving things, telling her to take time to decide what to do. It was also relevant that after he had succumbed to the illness which had adversely affected his ability to control himself, he had immediately called 000 to tell police what he had done.
18. While his delay in making that call was accepted as being relevant, it was submitted that it did not establish that there had been premeditation or planning, Mr Ahmed having used a knife to hand in the kitchen, to kill Ms Elahi. It would, undoubtedly, have been better, it was submitted, if he had rendered Ms Elahi aid, but that he did not would not preclude the reduction of his sentence to manslaughter, because it would be accepted that he was in shock at what he had done and obviously not thinking straight.
19. It was finally submitted that it had to be borne in mind that what Mr Ahmed had done could not be analysed from the prism of what a normal person would have done, which it was accepted, would have been to render Ms Elahi assistance.

The other evidence

1. In assessing Mr Ahmed's accounts and considering what the psychiatrists made of them in order to determine whether Mr Ahmed has established his defence, the other evidence needs to be taken into account.
2. The Crown called evidence from a work colleague of Mr Ahmed; his manager; a friend; Mr Khan; Detective Senior Constable Starr who explained some evidence about the crime scene; Detective Sergeant Fenwick; and Detective Senior Constable Nagy, who explained what the schedule of Mr Ahmed's internet searches established. Statements made to police by Mr Khan's wife, a friend of Ms Elahi and her husband were also tendered, but they were not required for cross-examination. It is unnecessary to identify these various people by name.

Detective Sergeant Fenwick

1. Detective Sergeant Fenwick explained, without objection, what enquiries made of Mr Ahmed's half-brother had revealed about his background and upbringing. This included that his father had funded his education in Bangladesh, where he had enrolled in the University of Engineering and Technology, but he had not completed his degree and that he had always appeared mentally stable and healthy during his upbringing.
2. Detective Sergeant Fenwick also read the entry made in the police database about police attendance at the couple's home in April 2015, in which Mr Elahi was described as "the victim". She then reported that they had been arguing more and more about issues in their marriage and she had told Mr Ahmed that she was not sure that she wanted to remain in the relationship and was waiting for her parents to come, before she made her decision on what to do. She had become scared due to the way Mr Ahmed "has been in regards to his health" and had then panicked and become short of breath, with the result that he had called an ambulance. The report confirmed that she had been trying to get him to see a psychologist because he had been quite stressed, but there had been no threats of violence.
3. Detective Sergeant Fenwick also confirmed that police had attended again on 26 September 2016, when they found Mr Ahmed in the front doorway, emotionally distraught. He then said that he had not hurt himself, but did not know what to tell his wife, because he had been told that she was having an affair. He was assessed by the mental health team, which was satisfied that he wouldn't harm himself and he agreed to speak to his GP.
4. Detective Sergeant Fenwick also confirmed that the brother-in-law of Mr Khan's wife had said in a statement to police that he had briefly spoken to Mr Ahmed on the phone about the letter Ms Elahi had sent to Mr Khan and told Mr Ahmed "I don't know what's going on. You'll have to talk to your wife".
5. Detective Sergeant Fenwick also confirmed that Ms Elahi's diary had been located at her workplace. His evidence as to what she had there written in relation to the events of 26 September 2016 was: "Everything went upside down. On the 26th I have wrote a letter to Riad and not sure how Tarin got the letter. Tarin spoke to Rasal regarding the letter and he almost tried to suicide. I can't take this anymore. I can't have him because of his surgeries. Still how I feel for him. I was wrong about" I can't read that word, is it "affection"? "life is getting bitter. Tarin has" - - Q. Does it look like "blames"? A. "Blames me for her separation. Now everything is my fault. I have to be" "I have to be" something. Is it "love" or "love everyone"? Q. "Love everyone". You said, the sentence "After he almost tried suicide, I can't take this anymore. I can't leave him", is that right? Is that what that says? A. Yes, that's right. Q. But then there's something crossed out. You can't make out that? A. No. Q. But then the words "because of his surgeries"? A. Yes, that's right.
6. The ERISP recording of what police found at the crime scene; medical records; the contents of the Facebook exchanges between Mr Ahmed and Ms Elahi; and the text messages which she exchanged with Mr Khan, some parts of which were in Bangladeshi and their translations, were also in evidence, as was the letter which Mr Ahmed wrote to Ms Elahi, before he went to Bangladesh in November 2016. The letter Ms Elahi wrote to Mr Khan was not in evidence.
7. The evidence establishes that in 2015 Mr Ahmed saw Dr Ngo about his depression, on the last occasion in May in the company of Ms Elahi's father, but he pursued no treatment. In 2016, Mr Ahmed also gave others, including Dr Ngo, accounts of suffering symptoms consistent with the depressive condition with which he was diagnosed, after his arrest in 2017 and for which he received treatment in custody. To that point he had not pursued such treatment.
8. Consistent with this history, the evidence of Mr Ahmed's work colleague and his manager was that prior to 2016 he was not adversely affected by depressive symptoms. Their evidence was that prior to 2016 he had a good work history, always being punctual, polite, cheerful and responsible.

Mr Ahmed's colleague

1. The evidence of Mr Ahmed's colleague was also that because of their shifts he and Mr Ahmed rarely saw each other face-to-face in 2016. They never worked together unless there was a rare overlap of parts of their shifts; they did not socialise; and they only spoke if Mr Ahmed arrived early to start his shift. The colleague did not speak to Mr Ahmed before he went to Bangladesh in November 2016 and did not know why he went, but understood that he was returning to work.
2. In December 2016 he contacted Mr Ahmed on Facebook to ask how he was. His response was "alive", using a Bangladeshi term used when a person is upset. He asked why Mr Ahmed was upset, but received no reply and Mr Ahmed later told him that he had lost his phone. In December, Mr Ahmed also asked him for his manager's number and he learned from the manager in February 2017, that Mr Ahmed had returned.
3. He then sent Mr Ahmed a text about doing a shift on Sunday night. There was no reply, but they spoke during the afternoon, when he asked how Mr Ahmed was, he said "good" and that he could do it, but he spoke in a soft voice, keeping the conversation short, while normally his voice was really strong and smiling. His work colleague had not heard Mr Ahmed speak in that tone before.

Mr Ahmed's manager

1. The evidence of Mr Ahmed's manager was that he had originally employed Mr Ahmed as a casual, but had later offered him full-time work. He had remained employed despite some absences in 2016 when he went overseas and when he had medical problems, initially an operation on his wrist and then in September, surgery on his nose.
2. The manager also said that it was from mid-2016 that Mr Ahmed was a bit distressed. Previously he was always punctual and did not take time off work. He then had 6-8 weeks off after the surgery and after he returned, he began calling in sick. Mr Ahmed then confided that he had a problem with his wife. In September the manager visited Mr Ahmed and his wife at home. While Mr Ahmed had been distressed previously, his mood then was normal.
3. But in cross-examination the manager said that it was from March or April 2016 that Mr Ahmed started taking time off work and that he had called in sick, on one occasion, on his way to work.
4. Later in 2016, Mr Ahmed said he wanted to travel to Bangladesh to visit his family again and that he had plans to open a restaurant there, with one of his cousins. He was very enthusiastic about his plans to open the restaurant outside Dhaka, where he lived, where people could have recreation and food together.
5. Mr Ahmed also spoke to his manager after his return on 16 February. He then said that his trip was "all good" and that he was looking to open a restaurant on his uncle's land. He also said that the situation with his family had not improved much and that "My wife has been talking about getting divorced but I don't want to" and that he had approached his in-laws. He called again on 17 February to confirm his shift.
6. In cross-examination the manager also said that he knew that Mr Ahmed had come to Australia because of his wife and that because all of his money was going to his wife's education, money was very important to him.
7. It was in May 2016 that Mr Ahmed started smoking and while he didn't explain much, he said he was facing some problem with his family and then confided having problems in his marriage. It was after he had 6 to 8 weeks off for his wrist surgery, that he began taking more time off and then he left to go to Bangladesh in November, for which he was allowed leave without pay.
8. When Mr Ahmed returned in 2017, the manager did not understand that he intended to live in Bangladesh, after the restaurant was opened. He understood one of Mr Ahmed's cousins was going to run it. Mr Ahmed was not happy about the divorce that his wife was talking about.

Mr Khan

1. Mr Khan's evidence was that he had begun working with Ms Elahi in mid-2014 and that their friendship had developed from that time. It was in March 2015, after they had all returned from Bangladesh, that Ms Elahi told him that she was having problems in her marriage.
2. In April 2015, Mr Ahmed came to his work and spoke to him about putting ideas into Ms Elahi's head and causing problems in their marriage. He said that it was a calm conversation, but he told Mr Ahmed not to contact him again, unless it was a medical emergency. Afterwards they hardly had any further contact.
3. In cross-examination Mr Khan denied that Mr Ahmed had told him that he was suspicious of he and Ms Elahi. He agreed that Mr Ahmed had not threatened him, but had told him to stop interfering in his marriage, after which their friendship had soured. He also agreed that in July, Ms Elahi's father came to stay with her and Mr Ahmed, to help with their marital concerns. Her father stayed a month or two and in that time, their relationship was not maintained, although they saw each other at work.
4. Mr Khan's unchallenged evidence was also that their relationship did not become romantic until after July 2015; that they never had sexual intercourse; that they had engaged in passionate kissing, but not in public; and that they had also held hands and exchanged gifts.
5. In September 2016 Mr Ahmed telephoned Mr Khan and calmly told him that "I hope you're happy. You can come over. I'm leaving home". Sometime afterwards Ms Elahi telephoned him at home and said that she had left home and was sitting at a train station. He and his wife went and persuaded her to go with them, because it was very cold outside. She stayed a few days before returning home, after she had spoken to Mr Ahmed outside Mr Khan's house. In cross-examination Mr Khan also agreed that this could have occurred before Ms Elahi's father came to Australia.
6. Mr Khan said that in the letter Ms Elahi wrote to him, she had told him that she respected him and could see herself becoming his wife. He said his wife had seen the letter in October 2016, but agreed in cross-examination that it could have been in September.
7. Mr Khan also agreed in cross-examination that they had kept their romance private, because he did not want Mr Ahmed to find out, but that he was aware that there were numerous occasions when Mr Ahmed had said that he knew what was going on. He also agreed that he and Ms Elahi had shared intimate photos on the internet as well as messages fantasising about sexual relationships with each other, including after Mr Ahmed returned to Australia on 14 February 2017.
8. The last time Mr Khan saw Ms Elahi was on 14 February 2017, when they met for lunch.

Mr Ahmed's friend

1. The evidence of Mr Ahmed's friends, who had known him and Ms Elahi first in Bangladesh and continued contact with them and also with Mr Khan and his wife in Australia, was that it was in 2015 that Mr Ahmed first told him that he was suspicious of the nature of the relationship between Mr Khan and Ms Elahi. It was in November 2015 that he learned that Mr Ahmed and Ms Elahi had had a big fight and that she no longer wanted to live with him, but that he wanted to make the marriage work.
2. In cross-examination he said that initially their problem was not suspicion, but that they had started fighting over small matters like cleaning dishes and doing household works and that he had told them that this was not a good enough reason to separate. When he spoke to Ms Elahi, however, it seemed that she had already decided that she was not going to stay with Mr Ahmed and was trying to find every fault she could find with him, but nothing was then said about any relationship with Mr Khan. He only learned about those suspicions later, from Mr Ahmed.
3. In cross-examination, he also said that when Ms Elahi's father came to Australia, she was also not really interested in continuing and working on the marriage, but she did not then ask for a divorce, she needed time to work out what to do. He also knew that Mr Ahmed later pursued counselling, but Ms Elahi did not.
4. In November 2016 Mr Ahmed told him that Ms Elahi wanted a break from the marriage and that he was going back to Bangladesh, for about 3 months. He also went to Bangladesh in that time and while he was there he took Mr Ahmed to see Ms Elahi's parents. He described Mr Ahmed's mood as then being very sad, but that he wanted to make the effort to speak to her parents, although he was quiet during this meeting. While they also wanted the marriage to work, her father said that they considered that it was ultimately Ms Elahi's decision.
5. They also spoke after Mr Ahmed returned in February 2017. On 15 February he sent Mr Ahmed a text asking what Ms Elahi's decision was. Mr Ahmed's response was "divorce". On the morning of 17 February they spoke for about 18 minutes. Mr Ahmed sounded quite normal and he said: "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"?"
6. Mr Ahmed also repeatedly said: "I'm trying to continue the marriage but Farinha has already decided that she's leaving me", but he did not seem angry or upset.
7. In cross-examination he said that it was by November 2016 that Ms Elahi had decided she wanted a break and Mr Ahmed went to Bangladesh, so that they could work out what they wanted to do. By 15 February 2017, he had learned from Mr Ahmed that she wanted a divorce, but his attitude was that he would not help her. Still, he was not angry.
8. Ms Elahi was not saying that it was his fault that the marriage was not working, but that it was her fault. She had made a mistake and even if they stayed together, he would suffer later in life thinking about the mistakes she had made and he would always be unhappy, so she wanted to end the relationship.

Ms Elahi's friend

1. In her statement Ms Elahi's childhood friend said that she and her husband had lived with Mr Ahmed and Ms Elahi from March to September 2014. They then had a good relationship and never fought and looked happy.
2. Ms Elahi's father stayed with them for 4 to 6 months in 2015. During that time Ms Elahi told her she was having adjustment issues with Mr Ahmed and that her father was there to help sort them out. Ms Elahi said they were about small things around the house and that Mr Ahmed did not understand her, or help her and she was tired of it.
3. She last saw Ms Elahi in December 2016 while Mr Ahmed was in Bangladesh. Ms Elahi then told her that she would go for a divorce and that Mr Ahmed had gone to Bangladesh to decide whether they were going to stay together or not. Ms Elahi had also said that she would think about her decision in that time. Ms Elahi then seemed her normal self.
4. She also knew Mr Khan and his wife and described them as Mr Ahmed and Ms Elahi's closest friends. Ms Elahi had also told her that she and Mr Khan were very good friends.

The friend's husband

1. The husband of Ms Elahi's childhood friend confirmed his wife's account.
2. He said that while they lived with Mr Ahmed and Ms Elahi he heard only normal couple arguments, such as over slicing onions and that they then had a good relationship. Ms Elahi never discussed their relationship with him and when he saw her in December 2016, she seemed happy.

Mr Khan's wife

1. In the statement she made on 19 February 2017, Mr Khan's wife said that she had moved to Australia in 2003 and had married Mr Khan, who she met in 1999, in 2005 in Bangladesh. She had also met Mr Ahmed in 2004 or 2005, while he still lived in Bangladesh and he was like a younger brother to her. He also had a good friendship with Mr Khan. She got to know Ms Elahi through Mr Ahmed, but she was not friends with her, but after they moved to Australia, she and Mr Khan spent a lot of time socialising with Mr Ahmed and Ms Elahi.
2. She and Mr Khan had had a rocky relationship, which they only maintained for the sake of their son and she had commenced divorce proceedings in 2015, which she had not completed.
3. Ms Elahi had told her in 2015, while they and Mr Khan were travelling to Bangladesh where Mr Ahmed then already was, that she and Mr Ahmed were having problems. While together with her in Bangladesh, Ms Elahi cried after she spoke to Mr Ahmed.
4. After they returned to Australia, she sensed that something was going on between Mr Ahmed and Ms Elahi, whose relationship did not seem the same. She also knew that Ms Elahi had gone to stay with a friend. Mr Ahmed then told her that he thought Ms Elahi and Mr Khan were having an affair. Ms Elahi returned home and she then tried to counsel her and Mr Ahmed and told him, that she did not think they were having an affair.
5. Sometime later Mr Khan told her that Ms Elahi had again left and was at a train station. They picked her up and Ms Elahi told her that Mr Ahmed had taken a knife and threatened to kill himself. Her parents had told her to leave. Ms Elahi stayed with them for more than a week and then her father came to sort things out and she moved home.
6. While Ms Elahi's father was still there Mr Ahmed texted her one night asking where Mr Khan, who had just left, was. He thought they were together. Some days later Ms Elahi texted her saying that if she wanted to know where she was, she should ask her. She thought that this was rude and then stopped talking to Ms Elahi.
7. But she kept speaking to Mr Ahmed, to give him emotional support. He was blaming Mr Khan and saying if it was happening in Bangladesh, he would have Mr Khan killed. He seemed depressed and told her that Ms Elahi was not talking to him. She kept advising him to give Ms Elahi more time and that she would love him again, because theirs was a love marriage.
8. But things did not improve and the marriage broke down to the point where they did not speak. Ms Elahi's father then left.
9. It was in 2016 that her brother-in-law showed her an electronic copy of the handwritten letter Ms Elahi had written Mr Khan, signed off with the nickname her parents used. She sent Mr Ahmed a portion of the letter and asked if it was Ms Elahi's handwriting, which he confirmed.
10. Until then she did not believe that Ms Elahi and Mr Khan were having an affair, but she then discussed with Mr Ahmed whether it was continuing and whether they should engage a private investigator. She told Mr Ahmed that she was already thinking of divorcing Mr Khan and he said that he was not feeling well. She then called him 6 or 7 times to check if he was okay, because he had a history of saying he would hurt himself, but he did not answer.
11. When Mr Khan came home from work he told her that Mr Ahmed had called Ms Elahi and told her that he did not know what he might do to himself and that she had called police. She then told Mr Khan about the letter, which he said he knew nothing about.
12. Mr Ahmed left for Bangladesh later in the year. He called her on 20 November, but she did not answer and told him to text her if he wanted to say something.
13. When approached by police she thought that he was still in Bangladesh and was shocked when told that Ms Elahi had died and that Mr Ahmed was in custody.
14. Because she did not talk to her husband, she did not know if he had contacted Ms Elahi in that time. She had also never asked Mr Khan if he had an affair with Ms Elahi. Around 2014 she had not spoken to him and they had not discussed Mr Ahmed or Ms Elahi.

Mr Ahmed's November letter

1. In the letter Mr Ahmed wrote to Ms Elahi before he went to Bangladesh in November 2016, he spoke of how their problems had started, when one day, suddenly she had expressed her dislike of many of his traits. He there admitted having made a lot of mistakes, but said that since the problems had started, he always thought that things would get better. He also said that she thought that because of her relationship, he would not be able to live with her, but while he would not promise that he would forget, in time it would fade.
2. Mr Ahmed also discussed how she said she felt, their quarrels and her efforts. He said that despite this, neither of them had left the other and that if they were together and worked hard on the relationship, which he was ready to do, gradually they could help each other "to improve". He also urged her not to make her decision before she had rethought everything and that he would not give up hope.

The Facebook messages

1. In the Facebook messages which Mr Ahmed and Ms Elahi later exchanged while he was in Bangladesh, they discussed everyday matters, what they were doing, the weather, food, health, work and their plans. Contrary to what Mr Ahmed later told Dr Nielssen, what Ms Elahi said in these messages, cannot have given him hope on his return that she had altered her mind about their relationship continuing.
2. To the contrary, in a long series of exchanges on 12 February 2017, for example, she told Mr Ahmed who said he still wanted to lead a life together even though she wanted a divorce, things like "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".
3. What Ms Elahi said was consistent with Mr Ahmed's account that in January they had argued when he posted a photograph of them together on his Facebook page, which he considered he was entitled to do, because they were still married.

Mr Ahmed's other accounts

1. Despite the case advanced for Mr Ahmed, I am not able to accept that the accounts which he gave when interviewed by the experts in 2018 and on which their opinions necessarily in part rested, were entirely accurate, or reliable, given the differences between these accounts with his earlier accounts and the other evidence I have discussed. Neither expert had to consider these differences, given the differences in their functions and mine.
2. These accounts included the following.

In the 000 call

1. In this account Mr Ahmed began by calmly telling the operator that he had killed his wife and asked for police to be sent.
2. In response to the operator's questions, Mr Ahmed said that an ambulance was not needed. Contrary to his later accounts, he told the operator that "this" had happened only a couple of minutes ago.
3. Mr Ahmed also said that Ms Elahi was not breathing; that she was dead; that she had an affair with one of his friends long ago; that she said it was not happening anymore; and that he had checked her phone today.

On arrest

1. In this account Mr Ahmed calmly told police that he and Ms Elahi had argued; that she had an affair with one of his friends 2 years ago; that he had asked her and she had said that it's over long ago; that they had tried to recover their marriage; and that they had stayed separately for a couple of months.
2. Contrary to his later accounts and the other evidence I have discussed, he said that it was when he had come back that she had said maybe they didn't have a future together.
3. Mr Ahmed also said that Ms Elahi had told him that she still didn't have anything to do with "him", but "she thinks that I cannot trust her again"; that he had checked her phone and she still had a relationship with "him"; and then he had killed her with a knife.
4. Also contrary to his later accounts and what was established on autopsy, Mr Ahmed then said he had used the knife only a "couple of times".
5. Mr Ahmed also said that she was breathing for some time, but that he did not check to see if she was ok at all and that then he had called police to send someone to get him, using her phone.

During the recorded police interview

1. This account also differed in relevant respects from Mr Ahmed's other accounts and the other evidence I have discussed.
2. Mr Ahmed gave this account over the course of some hours on the night he killed Ms Elahi, at times with the assistance of a Bengali interpreter. On this occasion Mr Ahmed again quite calmly gave a very detailed, lengthy account of what had happened in the relationship, as well as of what he had done to Ms Elahi.
3. Consistent with what was noted in the experts' reports and what Dr Martin later said in his evidence, it was apparent from this interview that Mr Ahmed is intelligent. While he gave some of his answers in Bengali, he had quite a good command of English, on occasions correcting the interpretation of his answer.
4. Mr Ahmed was quite animated when answering some questions he was asked. He remained alert and responsive during most of the interview, giving wide ranging and coherent answers to most of the questions. He did not appear to be particularly emotional or depressed, although he became quieter and more thoughtful when being asked why he had not sought help for his wife, after he had stabbed her, which he said he was unable to explain.
5. The answer lay, however, in the actions which he described and what was later agreed, namely, he had waited to make sure that Ms Elahi was dead, before he called for police to be sent. On that account there can be no question that he intended to make sure that she was beyond help, before he called 000, asking for police and not an ambulance to be sent.
6. This account included: 1. Mr Ahmed had returned from Bangladesh on 14 February 2017, having gone there in November, because he had then asked for a separation so that they could decide what they were going to do. At that time Ms Elahi had a new job and could not take leave, so he had said she should stay and he could manage his job, taking paid and unpaid leave. 2. They had been having problems since 2015, when they went to Bangladesh for a holiday, when he suspected that she was having an affair with Mr Khan. 3. When they continued to have issues, her father came to Australia in July to September 2015 to help her, but their problems didn't resolve. He said the problems involved him lying to Ms Elahi sometimes about "some specific things"; he had also lied about "the guy", to break his friendship; and also "many small reasons". 4. They went to Bangladesh again in February 2016 to attend her sister's wedding. At a ritual they attended there, he noticed that she was chatting on Facebook to Mr Khan. He then asked Ms Elahi if her parents knew; if she had anything else to tell him; and told her that he would leave from her life. He also urged her to tell him the truth and then left the party, which everybody else noticed. 5. After they returned to Australia Mr Ahmed needed surgery on his hand and Ms Elahi took care of him and he realised that whatever he suspected was not correct and that he was preoccupied with suspicion. She was caring and their relationship improved and they were happy, but he said it was like they were flat mates, not husband and wife and they did not visit others. But neither of them asked for a divorce. Contrary to the evidence of his manager and work colleague, even though sometimes they argued, Mr Ahmed described this to have been "a golden time". 6. It was around 26 September 2016 that Mr Khan's wife contacted him about the letter she had found and sent him a part of it. It was after this, that he became mentally sick. 7. He then called Ms Elahi at work and asked her to come home because he was not feeling well. She called police on 000 because she became frightened and after they had checked him to make sure he had not harmed himself, they left and she arrived home. 8. He had then grabbed her hand in a begging attitude, and urged her - "for God's sake if you have any kind of relationship with Riad, tell me honestly, I'll walk away from this". Riad was the name by which Mr Khan was known. Ms Elahi denied this but when he showed her the letter, she agreed it was her writing and had cried. She told him that the relationship had ended; that she had written the letter at the time of her sister's wedding in Bangladesh; and that "Now, you do what you want to do. If you want you can kill me." 9. Mr Ahmed had then told Ms Elahi that he trusted her, and "I want to give you one more opportunity". He then asked her to ring Mr Khan to tell him that "from now on, even if I want to say you, Hi, that should come to through my husband." 10. They then resumed their normal life, but later he thought that Ms Elahi was deliberately starting to argue and in October 2016 they had a big argument, after he had criticised her by mentioning Mr Khan's name. She had then asked him from his behaviour: "Don't you, uh, don't you like to hit me." And he said no, he wanted to hit Riad. But Ms Elahi said she was not going to live with him for the rest of her life, to listen to his taunting. They then began discussing divorce and he said "OK, let me have some time, and you also take some time." 11. After that night they had another argument and Ms Elahi admitted that she had contacted Mr Khan and had sent an email. Mr Ahmed said that had made him believe her, that their relationship had ended. Mr Ahmed then started trying to get the relationship back. Ms Elahi didn't ask for a divorce, but if she had, he wouldn't have stopped her from divorcing. 12. When asked why he did not ask for a divorce, he said that it was because he didn't want to "give up so easily", because he was the one who brought her here as a student; helped her to study two masters degrees fulltime; and spent almost "70 grand" on her studies, while he worked 30 to 32 days without any break. 13. They still then had an argument every 2 or 3 days and Mr Ahmed thought that maybe Ms Elahi lied to him and she was still "having the relationship" and not telling him and was "pretending". 14. It was in November that Ms Elahi told him the first time that they should be separated. He then told her "no‑one, man who has a manhood can stay with a woman like that ... But I want to keep you, … I have forgiven you for that mistake and due to our conflict, Riad in fact has taken opportunity between both of us, he has taken advantage. 15. But Ms Elahi was not convinced and he then realised that she was "desperate" to get the divorce and that he should go from her life. He wrote her the letter to tell her that he was going back to Bangladesh, which is in evidence. He then hoped that she would stop him going because he expressed his feelings and told her: "when I, when I cast my eyes in you, that you, you're, you're, you feel that I am actually, uh, uh, I'm actually, uh, , I'm feeling bad about you. That's not correct. In the course of time, that, whatever that, whatever the, what the wrong thing that you have done, in the course of time, gradually that feelings will go away, it'll be faded away, so you don't think that I feel bad about you." 1. Mr Ahmed left for Bangladesh on 22 November 2016, but always wanted to make the marriage work, so he kept messaging Ms Elahi every day on Facebook, making normal enquiries. 2. In January 2017, Mr Ahmed posted a photo of them both on his Facebook page. They had their first argument over this and he then told her "we are still married, and I have right to post my wife's and me in the same photo, I can put it on my Facebook". He then told her that if she wanted a divorce he couldn't stop her, "but I will try level best to maintain this relationship". 3. They didn't talk, but Mr Ahmed kept messaging her and then chose to return on 14 February, the anniversary of the day he had proposed, bringing her gifts, because he always had a positive mind. 4. The following day Ms Elahi told him that she wanted a divorce and didn't think he wanted a joint application, so that she would do it. He told her that "If you want divorce, I can't stop you but I will try my very best to just keep this relationship as I believe that you do not have relationship with that boy". He also asked her when she had last had contact with Mr Khan. 5. It was on 18 February, after dinner, that they began to argue again and Mr Ahmed told Ms Elahi that he didn't believe her and had no faith in anything she told him. He also accused her and Mr Khan of framing him and that they both just planned it and had used Mr Khan's wife deliberately to disclose her letter to him, so that "I can go away from your life". 6. It was then Mr Ahmed said that he became very much agitated, snatched her phone and they scuffled, during which Ms Elahi's ear was injured. After the blood was wiped away, he had to drag her to the bedroom where he told her: "I don't trust you, you just, you know, let me access in your phone, I want to see because you are telling that you don't have relationship but I still believe that yes you are still maintaining the relationship. So whatever you are doing with me, all are acting pretension. You are basically intentionally you are just, oh, sorry, you, you, you, you are intentionally wanting to go away from my life, you know, you pretend yourself you are honest you are good to me by telling those that your regrets and, uh, uh, I don't deserve you, or you don't deserve me. Those things are all drama." 1. Ms Elahi then told Mr Ahmed that she was not feeling well and he pulled her to the kitchen, gave her water and then grabbed the knife, warning her "if you shout or you 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". 2. He then dragged Ms Elahi back to the bedroom, where the argument continued. She did not want to give him access to the phone and repeatedly said Rasel "I've done lot mistake, please forgive me, I've done a lot of mistake, forgive me", but he kept telling her, "No I will see the phone today, I will see the phone today." 3. Ms Elahi also said "Whatever you want I will, I'll follow you, I'll comply you, I, I will accept whatever way that you want, even if it is needed I will, I will follow you to Bangladesh and I will not tell anyone whatever happened today." But he told her "I do not believe you at all, I don't believe anything of you are telling me". 4. Eventually, she gave him access. It was then that Mr Ahmed read the messages. He said that he couldn't control himself and started stabbing her indiscriminately, he could not remember where, not thinking anything, not wanting to kill her and not thinking that he would seriously injure her. While stabbing her she was saying "Forgive me Rasel, forgive me Rasel". It was when she said "You were never like this, why are you, why are you became like this, you were never been like this, why you became like this?" that he stopped. 5. Still he did nothing to help Ms Elahi. Instead he went into the other room for about 5 minutes, then he took his cigarettes back to the bedroom and smoked one or two, before calling police. He could not explain why he did not try to help her or call for an ambulance, while she was still breathing. 6. He then called 000 for police, using her phone, which was thumb activated.
7. It should be noted that on this account, consistent with what she later said in their Facebook exchanges and what he said when he telephoned Mr Khan before he left for Bangladesh in November 2016, Ms Elahi had first told Mr Ahmed before he left not only that she wanted a divorce, but that she was "desperate" for a divorce. It was then that he agreed they would separate.
8. There is simply nothing in this account or the other evidence I have discussed, which provides 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. But still he returned, on this account, in a positive frame of mind. That was also despite they having argued in January over him posting a photo of them together on his Facebook page, to which she objected.
9. On this account Ms Elahi not only soon confirmed her intention to divorce on his return, but told him that she was herself taking steps to pursue the divorce. On the evidence of his friend who had seen him depressed in Bangladesh, on the day that he killed her, Mr Ahmed discussed Ms Elahi's desire for divorce, with which he still did not agree, without distress.
10. On this account it was not Ms Elahi's desire to divorce, but his suspicion that her relationship with Mr Khan was continuing and that he was being taken advantage of, which triggered the argument, which resulted in her death.

To Dr Nielssen

1. Dr Nielssen twice interviewed Mr Ahmed in April and May 2018, having read the police facts, the transcript of his police interview and his medical records. His report indicates that Mr Ahmed also gave him a detailed account of his relationship with Ms Elahi and what he had done to her. He then also had the assistance of an interpreter, but answered all but one of the questions in English.
2. As a matter of common sense it is to be unexpected that there would be some differences in the details of the accounts which Mr Ahmed gave so long after he had killed Ms Elahi, given the time and capacity which he undoubtedly had, while in custody and having been treated for his depression, to reflect on what he had done.
3. But what Dr Nielssen records in his report reflects that Mr Ahmed's account was by then so different in relevant respects from those which he had given on that night, that its veracity is questionable. The report reflects that: 1. When asked how he intended to plead, Mr Ahmed said that he had not planned anything; he had received legal advice; that in his mind "I never thought that I would do this"; and that when he "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". 2. It was in 2015 while he and Ms Elahi and Mr Khan and his wife were visiting their respective families in Bangladesh, that they had argued when he was unable to contact her, and she seemed not to want to receive or return his calls. 3. After they returned Ms Elahi told him she did not enjoy being with him and did not think they had a future together, after which their relationship ceased to be intimate. 4. They then had relatives staying for much of the rest of the year and travelled to Bangladesh in January 2016, for her sister's wedding. Mr Ahmed said that he was then very stressed about the state of his marriage. 5. Contrary to his account to police and the evidence of his work colleague and manager, however, he said that everything changed from that time. As a result he could not concentrate on work, took lots of sick leave, had trouble sleeping for more than 4 or 5 hours and often woke early. His appetite was poor and he lost weight, but he was not aware of anxiety symptoms, although he had on two occasions fainted at work because he was thinking too much. 6. Contrary to the medical records, he first consulted Dr Ngo about these problems in mid-2016, when he was suffering severe headaches, due to a sinus polyp, for which he had surgery. He was also referred to a psychologist, but did not pursue the referral and was prescribed no medication. 7. It was after he was given the letter in September 2016, that he became depressed to the point that he believed he needed help and was referred to Relationships Australia. Ms Elahi could not go, but they attempted to improve the relationship and she showed him an email sent to Mr Khan confirming the relationship was over. But the relationship did not go well and at the second counselling he was told that maybe they needed a break. 8. Mr Ahmed then decided to go to Bangladesh but they communicated in a friendly way while he was away and he arranged to return in February 2017. 9. When they argued on 18 February 2017 Ms Elahi raised his parents' divorce and his father's second marriage, after which he felt "furious" and said "maybe you still have something with that guy". The argument then escalated. He grabbed her phone and slapped her. He had never hit her before, but he got so angry and she fell down and was bleeding from the ear. They went to the kitchen to get tissues and there he saw the knife and said "give me access I need to see what is on your phone". 10. Contrary to his police account, Ms Elahi tried to change the topic, by saying "let's go to our country" and they argued for one to two hours. He was angry and could not remember what they talked about. He said "I think you pretended from the beginning" and that "I felt like you want me to commit suicide so you can live with my friend". He slapped her again, before she eventually gave him phone access. 11. When Mr Ahmed read the messages from the last 2 or 3 days, he felt humiliated and so "bad" and angry that he threw the phone and he felt like "smoke was coming from his body" and like his wife was saying "kiss my ass" to his friend in front of him. Then he jumped on her and stabbed her. 12. Quite inconsistently with his account to police that he believed she was dead before he called 000, after he went to the next room to smoke, when he went back Ms Elahi 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". 13. Initially Mr Ahmed denied symptoms of psychotic illness such as experiencing hallucinations, voices or holding beliefs that he later realised to be false. But he said that after he was told of the affair in September 2016 he was paranoid, had bad dreams and was thinking at work that she was cheating and sometimes he felt so angry that his whole body got tight and hot and he felt exhausted, like smoke was coming out of his body. 14. Mr Ahmed also said that he did not see himself as abnormally jealous. Contrary to his police account and the agreed facts, that there were very few arguments. He said that there were no previous incidents of violence and that the first time that he had hit Ms Elahi, was in the course of the argument which caused her death. 15. Mr Ahmed also said that he still had problems sleeping and dreamt about the text messages and got angry and then "I feel so sorry and cry for her ... I will never see her again ... she is gone and I have nothing left".
4. As I earlier noted, Dr Nielssen diagnosed Mr Ahmed to have had a clinically significant response to an adverse life event, becoming depressed after his wife told him that she did not want to continue the marriage; that it became worse after he discovered that she was having an affair; and that it became acute when he read the text messages on her phone, after she had assured him that it was over.
5. These observations are inconsistent with the agreed facts, Mr Ahmed's earlier accounts and the evidence of the other witnesses, which establish that:

• it was in early 2015 that he first saw Dr Ngo about depression and November 2016 that Ms Elahi told Mr Ahmed that she wanted a divorce;
• the initial problems in the marriage in 2015 were not connected with Mr Khan;
• Mr Ahmed suspected an affair in 2015 over which they argued, but the relationship improved;
• In April 2016 Mr Ahmed first called police to attend the home, when Ms Elahi became concerned over his response;
• thereafter Mr Ahmed's symptoms began to affect his work;
• it was in September 2016 that his condition was at its worst, when he saw Ms Elahi's letter to Mr Khan and she called police the second time, because of her concerns about his suicidal ideation, but he was assessed by the mental health team which was satisfied that he would not self-harm and he did not;
• thereafter he did not pursue treatment as he said he would, but he accepted the advice he received in counselling, that he and Ms Elahi should separate, having realised she was "desperate" to divorce him;
• still he wished the marriage to continue, because he wanted to keep Ms Elahi, given all that he had invested in her education;
• from their communications while he was in Bangladesh Mr Ahmed was well aware that Ms Elahi's position had not altered, as he also told others on his return; and
• It was during his pursuit of his suspicions on the night he killed Ms Elahi that he fell into such a fury, even before he saw the text messages, that he first assaulted her and threatened to kill her with the knife which he grabbed for that purpose, if she did not give him access.

1. In the result, contrary to what he told Dr Nielssen, that Mr Ahmed had hope on his return to Australia, may not be accepted. Mr Ahmed did tell Dr Nielssen that when he returned "he did not think this would happen", but he did not, however, mention that in December and January he had pursued internet searches about punishment for adulterous husbands and wives.
2. In this account Mr Ahmed also claimed that it was Ms Elahi raising his parents' divorce, which made him so furious that he grabbed her phone and slapped her so hard, that she fell to the floor and that he hit her again during the course of their argument over the phone, which lasted 1 to 2 hours. But he made no mention of his threat, at knifepoint, to kill her if she did not give him access to her phone.
3. Mr Ahmed also then for the first time described feeling like smoke was coming from his body, a feeling which he said he had experienced before, but which had not previously resulted in violence.
4. It follows from this account that while Mr Ahmed 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 had actively investigated, notwithstanding that the evidence does not establish what he found on the sites he accessed, or how long he remained upon them.
5. Given the very many wounds which Mr Ahmed inflicted, which proved to be fatal, including the vicious stab to Ms Elahi's face, which left the tip of the knife broken between her teeth; what Mr Ahmed said in the 000 call and what he otherwise told police on the night he killed Ms Elahi, about how he had delayed making that call until he was sure that she had stopped breathing and all that it was agreed that he had done before he made that call, I am well satisfied that what Mr Ahmed told Dr Nielssen about the circumstances in which he made the 000 call, was simply untrue.
6. It follows that in so far as Dr Nielsen's opinion rested on the more favourable light which Mr Ahmed sought in this account to convey about his actions, particularly that he made the 000 while Ms Elahi was seemingly still alive, while holding her in his arms, the opinion has no foundation.

To Dr Martin

1. The account Mr Ahmed gave Dr Martin in July 2018 also departed in relevant respects from his earlier accounts. As well as the documents Dr Nielssen had been provided with, Dr Martin also had his report of 9 May. Dr Martin's report reveals that: 1. Contrary to what he had told police about "the golden time" in the relationship in 2016, Mr Ahmed told Dr Martin that the relationship had been "very beautiful" until about 2015. 2. Mr Ahmed described becoming angry with Ms Elahi when they were in Bangladesh in 2015 and that on their return, problems developed. She said "we need to rethink everything" and accused him of controlling her. They were not intimate from then on. 3. Mr Ahmed said he was stressed and had sleeping problems and in mid-2015, when her parents and uncle came to visit, Ms Elahi said she that was unhappy and they asked him why he had stuck with her. He was often in contact with her family, to encourage her to interact or mend the marriage. 4. Contrary to all of his earlier accounts and the evidence of his work colleagues, Mr Ahmed also said that he had become stressed and had started taking sick days from 2014, as he had difficulty focussing and was put onto night shifts as a result, so that he did not have to interact with patrons. 5. Mr Ahmed became angry and shouted at Ms Elahi while they were in Bangladesh in February 2016, because she was always talking about his friends' marriage problems, telling her then that they had their own problems. 6. Contrary to his account to Dr Nielssen, Mr Ahmed said he became more relaxed when they returned to Australia, because Ms Elahi was not working with his friend, with whom she had formed a relationship at work. She took care of him after his medical problems, when he had surgery. 7. In September 2016 he had texted Mr Khan not to bother them and later Mr Khan's wife contacted him to say Mr Khan and Ms Elahi were having an affair. He was very shocked and asked his wife to come home. She called police because she was concerned he might kill himself. He confronted her, but she denied having an affair, but when he showed Ms Elahi the copy of her letter, she acknowledged this and was upset. At this point he thought their relationship was over, but it was Ms Elahi who asked him not to leave. 8. Mr Ahmed said that after this that he could not function, because he was so stressed. He attended work sporadically, being pre-occupied with Ms Elahi's lying and cheating and constantly thinking about the relationship He then thought that he needed help and did Google searches around marriage problems and not only went to the Beyond Blue website, but called them and they advised relationship counselling, which he pursued with Relationships Australia, but Ms Elahi did not. 9. Mr Ahmed described then feeling very agitated and irritable when going to work and always thinking about the relationship and so called in sick. He also spoke to his manager about his inability to focus at work. 10. In November Mr Ahmed went to Bangladesh to reflect on the relationship. They had text and phone contact and he thought Ms Elahi was not unfaithful anymore, but he was not fully confident. He was not sociable and generally stayed at home, feeling depressed and crying. He was also angry at himself and blamed himself for the relationship break up and contrary to the evidence of his friend, he did not discuss his problems with family or friends. 11. Ms Elahi told him that she had emailed Mr Khan not to contact her and he denied making threats, but he felt like beating Mr Khan. 12. Still, when he returned to Australia in February 2017 on the anniversary of his proposal, he was feeling positive about resolving the relationship issues. He arranged to return to work. 13. It was during the afternoon of 18 February that Ms Elahi had said to him "your father got married twice and was happy why do you think you'll be happy stuck with me?". He then asked where "all this came from" and said "if you want a divorce I cannot stop you". The argument escalated and he asked her if she had developed her mentality from her parents. 14. Mr Ahmed then asked to see her phone, grabbed it and slapped her ear, which bled. He took a knife and said he wanted to see the phone, before she had the chance to delete anything. She said "it's in your head" but he took her into the bedroom, where the argument continued. 15. Ms Elahi then gave him access and it was when he saw the many recent messages which were evidence of intimacy, that he felt humiliated, ashamed and angry, especially at a message which said "kiss my arse" to which the reply was "yum". He then jumped on her and stabbed her. 16. He subsequently had a cigarette and Ms Elahi said she needed water and told him that "you don't understand, I'm dying". He subsequently had to use her finger to access her phone to make the emergency call.
2. This latter account seems to be an amalgam of part of what Mr Ahmed had said in his police interview and part of what he told Dr Nielssen.
3. This was the only account, however, in which Mr Ahmed suggested that his mental health problems had dated back to 2014. As I have explained, all of the other evidence, including that of his work colleague and manager and the medical records, does not support the conclusion that Mr Ahmed then suffered any illness, or that the symptoms which he developed in 2015, were of a kind which adversely affected him to any significant effect, including his ability to work, before mid-2016.
4. Further, on the other evidence Mr Ahmed's symptoms while he was in Bangladesh do not appear to have been as significant as he described to Dr Martin. Contrary to this account, the evidence of his friend was consistent with him suffering symptoms of his depressive condition while he was there, but I am not satisfied that they were severe.
5. Not only was Mr Ahmed able to discuss his marital problems with his friend before and after he went to Bangladesh, Mr Ahmed also spoke to him about his problems while they were together in Bangladesh. His friend also accompanied Mr Ahmed to discuss them with Ms Elahi's parents. He also advanced his business plans there and consistent with this, returned to Australia ready to resume work, in a positive frame of mind.
6. On his return, Mr Ahmed was also able to discuss his marital problems with his friend, his work colleague and his manager. When he told his friend, who seems to have been his closest confidante and who had seen him earlier depressed, that Ms Elahi was still intent on pursuing a divorce, he seemed normal. That was also consistent with Mr Ahmed being able to actively pursue arrangements to resume work.
7. In the result, that on his return to Australia Mr Ahmed's fluctuating adjustment disorder was causing him any significant impairment, simply cannot be accepted, despite what he told Dr Martin about the extent of his symptoms, particularly while he was in Bangladesh.

Mr Ahmed's abnormality of mind did not "substantially impair" his capacity to control himself

1. As discussed by Lord Parker CJ in Byrne where "the abnormality of mind is one which affects the accused's self-control the step between "he did not resist his impulse" and "he could not resist his impulse" is … one which is incapable of scientific proof."
2. That is because there is still no scientific measurement of the degree of difficulty which an abnormal person finds in controlling his impulses. That remains "scientifically insoluble" and so must be approached "in a broad, common-sense way": Quinn at [49].
3. As I have explained, the experts did not agree that Mr Ahmed's abnormality of mind "substantially" impaired his capacity to control himself, when he killed Ms Elahi.
4. On their evidence, a normal response to a stressor of the kind which Mr Ahmed experienced, the breakdown of his marriage, can result in symptoms of the kind which he suffered at times, namely feelings of depression, low mood, grief, anxiety, humiliation and anger. Such symptoms can also persist for a considerable time, without impairment resulting.
5. It is when such symptoms persist, rather than resolve over time, that the response to the stressor no longer remains within the normal range, but results in a disorder. As the experts explained, there is no blood test which can be administered to establish when such a disorder has arisen, or which can measure its severity, at any particular time.
6. In his oral evidence Dr Nielssen said that during the recorded interview on the night he killed Ms Elahi, Mr Ahmed looked depressed. Dr Martin had not seen that recording.
7. Given, however, that Mr Ahmed had only hours earlier not only violently killed Ms Elahi, he had then been arrested for her murder and was being questioned at length about what he had done, that reaction appears unexpected. I do not consider that this establishes much about the symptoms which he was suffering when earlier he killed Ms Elahi, or whether his impairment was then substantial.
8. The experts agreed that Mr Ahmed's condition fluctuated over time. The agreed facts say nothing about his mental health, or the state of the relationship between July 2015, when Ms Elahi last saw Dr Ngo and told him of their marital problems, and July 2016, when Mr Ahmed sought treatment for his hand, after he had punched the wall during an argument.
9. From the agreed facts and Mr Ahmed's accounts it is apparent, however, that despite having consulted Dr Ngo about his mental health in 2015 up until May and again after July 2016, Mr Ahmed's symptoms were never severe enough to require him to pursue any of the treatment he was recommended.
10. The evidence of those with whom Mr Ahmed worked also establish that it was only from mid-2016 that his symptoms became severe enough to adversely affect his work performance and even then, that he did not often take time off work, other than when recovering from surgery and travelling.
11. Even after police attended in September 2016, however, in response to Ms Elahi's concern that Mr Ahmed might be suicidal, when his symptoms were at their worst, he was assessed by the mental health team as not being at risk of self-harm. While Mr Ahmed agreed he would see his GP, he did not later pursue any treatment.
12. This and the fact that Mr Ahmed did not then, or later act on such ideation, is consistent with his condition and the impairment which it caused being less severe than he contended. That is also consistent with:

• until he killed Ms Elahi, Mr Ahmed never having acted violently towards her or Mr Khan, other than on the one occasion in 2016, before September, when he punched a wall; and
• after September 2016, Mr Ahmed being able to continue to work, despite the problems which his co-workers and friends described, apart from when he was recovering from surgery or travelling, without resorting to self-harm or violence.

1. The relationship counselling which Mr Ahmed pursued in 2016 before he left for Bangladesh resulted in a recommendation that the couple should take a break from the relationship. That was advice on which Mr Ahmed acted in November with Ms Elahi's agreement, having come to realise, he told police, that she was by then "desperate" for a divorce. That was consistent with what she had recorded in her diary in September 2016, when she wrote about not being able to leave him, as he was recovering.
2. After they agreed on the separation, Mr Ahmed was not only able to write rationally to Ms Elahi about his feelings and hopes, but to travel to Bangladesh; there to advance plans for a business venture; to maintain his contact with Ms Elahi and to pursue his desire to maintain the marriage; and then to return to Australia, to implement his plans to resume work and to persuade her not to pursue the divorce, he then knew she was intent on.
3. While Dr Nielssen considered that what Mr Ahmed was able so to do was not inconsistent with him suffering an impairment of the severity he had diagnosed, I am satisfied that Dr Martin's opinion, that all of this was consistent with his underlying, untreated condition and the abnormality of mind which it had caused, not having significantly impaired Mr Ahmed's ability to control himself when he killed Ms Elahi, must be accepted.
4. In his oral evidence Dr Martin said that an adjustment disorder was akin to a grief reaction, which at its extreme end could result in a person being unable to work, to attempt or complete suicide and to be violent. It could be mild or short-lived, or chronic, extending over a long time and resulting in severe impairment. Such disorders are very common and most people will experience such a disorder, to some stressor.
5. While it was not uncommon to develop such a condition in response to a marriage break up, Dr Martin considered that the question which had to be determined was the degree and severity of Mr Ahmed's condition and whether, when he killed Ms Elahi, it had an impact on his ability to self-control.
6. While Dr Martin agreed that planning a future business was not consistent with such a disorder being severe, because it showed future focus and planning to function by engaging in work, in cross-examination he also agreed that it was possible that Mr Ahmed was impaired at the time that he killed Ms Elahi, then being vulnerable to overreacting.
7. Dr Martin also agreed that what he would look for was objective symptomology, explaining that histories given in a legal context had to be approached with healthy scepticism, when there was an advantage to mental health issues being brought up. But he had not concluded that Mr Ahmed had been fabricating the account he had given him. Still, it was relevant that there was a lack of objective evidence of the degree of his impairment, around the time that he killed Ms Elahi.
8. Dr Martin also considered that Mr Ahmed's account to Dr Nielssen suggested an escalating argument, it being possible to have anger and rage without mental illness. He also agreed that Mr Ahmed's unpleasant rumination while in Bangladesh were symptoms of the disorder, as were feeling depressed and crying, which he considered to be unusual; feelings of unwarranted guilt; looking very sad, shaken and traumatised; and sleep disturbance and bad dreams.

Mr Ahmed's sentence could not, in any event, be reduced to manslaughter

1. Even if I had not come to this conclusion, on all of the evidence I have discussed, I 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.
2. That Mr Ahmed deliberately acted on his intention to kill Ms Elahi, inconsistent as that was with his prior good character, was established by all that he did to her, including his deliberate delay in calling 000, until he was certain she had stopped breathing.
3. As I have explained, I am well satisfied that Mr Ahmed's account to Dr Nielssen that he had made the 000 call in response to Ms Elahi telling him that she was dying, while he held her in his arms, was untrue. That was not only entirely contrary to what he said when he made that call, but to what he told police when they attended; what he said in the cold blooded account he gave that night of all that he had done; and with the facts later agreed.
4. It is apparent from the first account that he gave in the 000 call, that he had waited until he was sure that Ms Elahi was dead and beyond help, before he asked for police to be sent and told the operator that an ambulance was not needed. Of all of his accounts, that is the one most likely to be reliable, given when it was made and its brevity.
5. I am also satisfied that the pitiless conduct it is agreed that Mr Ahmed so pursued, despite his various accounts of how Ms Elahi had pleaded with him before he killed her, put beyond argument that the community's standards would not permit him now to be sentenced only for manslaughter, rather than for the murder which the evidence established he so deliberately committed.

Orders

1. For these reasons, I: 1. Find Mr Ahmed guilty of Ms Elahi's murder. 2. Order that his conviction for the offence of murder be entered. 3. Stand the matter over for sentence.

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