R v Ahmed

Supreme Court of NSW|2019-02-07|Before: Schmidt J

Judgment

Mr Ahmed has pleaded not guilty to the murder of Khondkar Fariha Elahi who, there is no dispute, he killed on 18 February 2017. By motion filed in January 2019, which is supported by affidavits sworn by Mr Ahmed's solicitor, Mr Amin he made application under s 132 of the Criminal Procedure Act 1986 (NSW), for trial by judge alone. The Crown opposes his application.
It is common ground that at trial what will arise to be resolved is Mr Ahmed's mental state at the time that he killed Ms Elahi and whether it was such as to give rise to a partial defence under s 23A of the Crimes Act 1900 (NSW). That will depend on expert evidence which may require the tender of some disturbing photographs, even though there will be little, if any, dispute about the facts. The experts have produced reports and it is proposed that before trial, they will confer as to those matters about which they do not agree.
In the circumstances, it is common ground that an order for a judge alone trial may be made if the Court considers that it is in the interests of justice to do so: s 132(4). Relevantly s 132(5) provides: "(5) Without limiting subsection (4), the court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness."
Whether it is in the interests of justice for Mr Ahmed's trial to be by judge alone, was in issue.

The application must be refused

Because of Mr Ahmed's confessions and what he later told those who examined him, there is no real dispute about how it was that he came to kill Ms Elahi as he did.
The case which the Crown will advance is that what the jury will have to resolve is the issue lying between the parties as the result of the conflicting expert opinions, it contending that Mr Ahmed killed Ms Elahi in rage, when her infidelity was confirmed. His racial background and religious beliefs are not relevant to what is in issue and will not be relied on as part of the Crown case.
Mr Ahmed will advance a partial defence based on substantial impairment. Whether that defence is made out will depend on the resolution of the differences in the opinions of Dr Martin and Dr Nielssen, s 23A of the Crimes Act relevantly providing: "23A Substantial impairment by abnormality of mind (1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. (2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. (3) …. (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. (5) …. (6) …. (7) …. (8) In this section: underlying condition means a pre-existing mental or physiological condition, other than a condition of a transitory kind."
In R v Bretherton [2013] NSWSC 1036, Harrison J observed as to s 23A of the Crimes Act, at [25] - [26] that: "25 The interplay between s 23A(1)(b) and (2) is important. The terms of s 23A(2) make it plain that the decision called for by s 23A(1)(b) is not in fact a medical or technical decision, even if the decision itself is likely, if not certainly, to be one that will have been informed by evidence of that type or character. Section 23A(2) makes it plain, as the Second Reading Speech was at pains to emphasise, that the factual matter requiring determination is at large, and is not in any way to be constrained or limited by expressions of opinion about it. It is abundantly clear that the opinion is one that calls up consideration of an objective community standard, being whether the extent of the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. That is a question upon which minds may differ, but is nevertheless an evaluative question that cannot, and ought not, be foreclosed. 26 The anterior question with which s 23A(1)(a) is concerned is in a different category. Medical opinions upon it and about it appear likely to figure prominently in the trial. It does not involve the determination of assessment of an objective community standard or indeed any other form of standard at all. It involves a question of fact to be decided with the legitimate benefit of expert medical evidence. Despite the concerns expressed by the accused about it, that is a decision of a type upon which juries are asked regularly to confer on something approaching a daily basis. It does not, and in my view in this case it ought not, derogate from the importance of leaving the s 23A(1)(b) issue to the jury in this case."
In the Second Reading Speech it was said "Proposed new section 23A(1)(b) is the centrepiece of the new defence. It returns the jury to the central position of assessing the culpability of the accused person. …. In coming to its verdict, the jury brings to bear the community's collective wisdom and its sense of justice.": cited in R v Bretherton at [22].
The history which Mr Ahmed gave both Dr Martin and Dr Nielssen included that he had enjoyed general good health and fitness; had not taken illegal drugs; had never abused alcohol, which he rarely drank; had no criminal record; and no history of mental illness, apart from having reported to his GP being depressed in 2015, in connection with Ms Elahi's desire for a separation. He was then referred for counselling, which he received from Relationships Australia. In March 2017, while in custody, the psychiatrist Dr Hearps had diagnosed him to be suffering an adjustment disorder with depressed mood and prescribed antidepressants, which he continued to take. That followed Mr Ahmed's report that his symptoms had become acute, immediately after the offence.
Dr Nielssen considered that Mr Ahmed did not have a mental illness which might have deprived him of the awareness that his actions were wrong, when he killed Ms Elahi and so had no defence of mental illness. But that he did have a partial defence of substantial impairment by abnormality of mind under s 23A of the Crimes Act, because of a depressive illness which followed Ms Elahi's advice that she wanted to end their marriage, which worsened when he discovered that she was having an affair.
Dr Nielssen considered that Mr Ahmed had killed Ms Elahi during an acute exacerbation of that condition, triggered when he discovered intimate text messages at a time when he had returned to Australia to resume the marriage.
Dr Martin considered Dr Nielssen's opinions. He came to the conclusion that it was more likely than not that Mr Ahmed had an adjustment disorder with depressive symptoms in the two years leading up to the killing. He considered that a person with depressed mood in the context of relationship conflict might be more prone to overreacting to perceived provocation and thus, it might be argued, that Mr Ahmed was then substantially impaired. But he also said that adjustment disorders are generally not considered to be in the severe end of mental disorders; are relatively common; and generally do not cause severe impairment, consistent with the level of function, which Dr Martin considered the history which Mr Ahmed gave had evidenced.
In the result Dr Martin concluded that while Mr Ahmed may have had some depressive symptoms, the rational explanation was that he was enraged when he found evidence on his wife's phone of the affair, at knife point and then repeatedly stabbed her out of jealousy and perceived humiliation. While an adjustment disorder may have made him over sensitive, he was then in control of his actions and functioning reasonably well up to that point, when he was not significantly impaired.
The operation of s 132 was considered in R v Belghar [2012] NSWCCA 86, discussed by Bellew J in R v Villalon [2013] NSWSC 1516 , who observed at [20]: "In R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1 McClellan CJ at CL (as his Honour then was), having undertaken an exhaustive review of the authorities, distilled a number of considerations relevant to an application for trial by judge alone. Those principles may be summarised as follows: (i) although s 131 provides for trial by jury "except as otherwise provided", the section does not have the effect of creating a presumption that the trial should be with a jury, thereby casting a burden of proof on an accused person (at [96]; 25); (ii) although the accused person carries an evidentiary onus the court does not determine where the interests of justice lie by requiring the evidence to rise to a level by which a presumption of trial by jury is displaced. Given that each mode of trial has its particular characteristics, and depending on all of the circumstances relating to the particular case, the court may conclude that the interests of justice are best served by a trial before a judge alone rather than a trial by a jury (at [96]; 25); (iii) subsection 132(5) acknowledges that when considering where the interests of justice lie, it will be relevant that where the trial involves an issue which may be informed by community standards or expectations the interests of justice may be best served by utilising a jury of laypeople (at [96]; 25); (iv) the legislation does not require weight to be otherwise given to the fact that, absent an application for a judge-alone trial, the trial will be with a jury as opposed to by a judge alone. The question for the court is whether it considers that it is in the interests of justice to make the order (at [96]; 25); (v) the subjective views of an accused, and his or her belief that a jury trial may not be fair (as reflected in his or her desire to dispense with a jury) is a relevant factor to consider. However, the fact that an accused person desires a trial by judge alone is not as significant as the reasons for that preference, whether those reasons are rationally justified, and whether they bear upon the question of a fair trial (at [99]; 26 and [102]; 26-27); (vi) Parliament has made plain by the enactment of s. 132(5) that it would be preferable in the interests of justice that there should be a trial by jury where an alleged offence involves the application of objective community standards (at [100]; 26); (vii) the granting of an application which is based upon the mere apprehension of prejudice in prospective jurors, and which is not based on evidence or a matter of which the court may take judicial notice, is at odds with the assumption which the common law makes that jurors will understand and obey the instructions of trial judges to bring an impartial mind to bear on their verdict (at [102]; 26-27); (viii) it is to be assumed that the protections afforded an accused person in the ordinary course of a trial will protect him or her from an unjust result (at [107]; 27-28)"
The circumstances which here arise to be considered were argued for Mr Ahmed to be similar to those considered by Garling J in R v Haydar (No 2) [2017] NSWSC 131 at [44] - [45], where his Honour observed as to racial and religious stereotypes: "44 It is an uncomfortable fact that in the current community environment, there are two themes which attract widespread attention and which engender strong feelings. The first is the perpetration of domestic violence - particularly by an older, larger man against a younger, smaller woman. The second is the disharmony which arises in some circumstances between the cultural norms of traditional practising Muslims and the norms of the majority non-Muslims in the community. 45 Whilst undoubtedly directions could be given to a jury to put these matters out of their minds, there nevertheless remains a risk, which I judge in the circumstances of this case to be a real one, that one or more jurors could continue to be prejudicially swayed in their consideration of the s 23A defence by such inappropriate matters."
His Honour reached this conclusion in circumstances where time had been lost during two failed attempts to empanel a jury, with jurors seeking to be excused, after empanelment, despite significant attempts to avoid that result and his Honour accepting that there was a real risk that any further jury may be affected by the prejudices which his Honour had discussed.
There the jury had been discharged after notes came from two jurors, one who advised that because the matter involved domestic violence and because they had a particularly strong view about domestic violence, they had concluded that the accused was guilty and did not feel able to give impartial consideration to the trial. The other identified that members of his family lived in close proximity to the address where the offence had occurred and expressed fears for the security of he and his family members, in light of his participation on the jury. A third juror had been observed in court as being unable to engage in the Court's processes, evidenced by failing to give any attention to counsel's remarks, flicking through the bible and placing his head in his hands and staring at the ground.
It is common ground that Ms Elahi's death also occurred in circumstances of domestic violence. There are graphic photographs of the injuries Mr Ahmed inflicted, three being relied on for this application. It appears that she was of petite stature, while Mr Ahmed was physically significantly larger.
Annexed to Mr Amin's affidavit was an article published in the Daily Telegraph online on 18 April 2017, which described Mr Ahmed , as a "giant", as well as other articles and discussions on social media. Mr Amin attested that there had been considerable other media coverage of Ms Elahi's killing, the laying of the charge against Mr Ahmed and the refusal of bail. A Google search of his name results in numerous media articles about the killing, as well as sensationalised headlines in some of them. Such media coverage has been shared on Facebook, including on Facebook pages of media organisations including 7 News Sydney and 9 News Sydney and "professed anti-Islamic" and other groups Mr Amin identified, with many Facebook users sharing "negatively biased views against Mr Ahmed", copies of some of which were also annexed.
Mr Amin also referred to over 1000 "emotional reactions" by use of an emoji symbol or facial expression, posted on Facebook about such stories and posts, the majority negative. Mr Amin also described the majority of the comments to have been racist in nature, both directly and indirectly.
Sadly, all too many killings which juries have been called on to deal with at trials involve the violent deaths of women caused by their husbands or partners, that requiring those juries to consider confronting evidence, including photographs of the kind which may need to be tendered in this case. It is also not unusual in such cases for juries to have to consider evidence about an alleged offender's mental state, in determining whether the Crown has established its case.
But the infliction of violence in domestic circumstances is not confined to members of our community who are of particular racial origin or religion. Ours is a community comprised of people who have not only been born here, but who have come from every corner of the world and who adhere to many different religions, or none at all.
That there has long been real community interest and concern about deaths which involve domestic violence is understandable and well known. That is nowadays not only reflected in considerable media coverage, when alleged offenders are apprehended and charged, but also in resulting discussion on social media, which unsurprisingly is commonplace. On the evidence, when Mr Ahmed was arrested and charged, there was such coverage and discussion.
In Mr Ahmed's case, what is in issue does not relate either to his racial origin or his religion, but to his mental state and the consequences of mental illness which he may have suffered at the time that he killed Ms Elahi.
Despite this, some of this adverse coverage was directed to Mr Ahmed's background as a Bangladeshi immigrant and his presumed membership of the Muslim faith. Some of it was in considerably derogatory terms. There is no issue that such material is still readily accessible on the internet, by Google search for example. If the trial proceeds before a jury, it will thus have to be given directions about not accessing material of that kind, as well as how it must approach its task.
The impact of such extensive, prejudicial pre-trial publicity on the fairness of a jury trial where such directions were given, arose for consideration in Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330. There the appellant was a well-known actor who had unsuccessfully defended serious charges involving sexual offences against children. That is also offending about which there is considerable community concern and interest, which the evidence established in that case was reflected in very extensive media coverage, as well as prejudicial, derogatory discussion and even ridicule of the appellant, pursued on social media. Nevertheless, it was concluded that did not establish that he had not received a fair trial: at [67]. There it was also observed: "66 Given how the internet and social media have developed since 2004 and how they now operate, as was explored during the pre-trial applications, when representatives of the media appeared, the efficacy of such steps is entirely questionable. That explains why few take down orders were pursued by the applicant, even during the course of the trial, which continued to attract considerable ongoing attention by both mainstream and social media. 67 That does not, however, mean that an accused who now becomes the subject of intense community interest, as the applicant did, cannot receive a fair trial. Nor did the evidence establish that the applicant's trial was not a fair one. 68 All of us, accused, victims, judges, jurors and other members of our community now live in a world of instant, largely unregulated communication of opinions disseminated by publication on social media, where they can endlessly be accessed and responded to by others. Such opinions range from the mildest of those depicted on the material in evidence (to the effect that if convicted the applicant should be appropriately sentenced), to the most extreme. In this case, that included satirical videos in the poorest of taste accessible on YouTube and even worse, commentary that not only denigrated the applicant in the way Zahra DCJ discussed, but which contained commentary which his Honour described as amounting to vigilantism. 69 The reality remains, however, that our civil society and the justice system which it has devised, is the means by which we help ensure that such views remain confined to social media, where those who hold such views are free to express them, rather than being acted on. 70 For centuries now, courts have had confidence that juries will decide the cases which they are called on to judge, on the basis of the evidence and that they will adhere to the directions which they are given by the presiding trial judges. Experience, including that revealed by this trial, demonstrates that despite fast moving technological advances which have provided people with enhanced means of communication, jurors still approach their tasks conscientiously. 71 There is good reason to continue in the expectation that, notwithstanding these technological developments and what they permit, juries will continue deciding cases on the evidence, in light of the submissions advanced at the trial by those who represent the parties to the proceedings and the directions of law which they are given by trial judges. This case demonstrates that jurors still accept that their decisions should not be made on the basis of what is published elsewhere, including on social media, about what falls to them to decide."
Here it was also accepted by Mr Ahmed that take down orders would not be effective.
At trial the jury would thus have to be given directions which include that they must impartially approach the resolution of the issue lying between the parties as to the nature and impact of the condition Mr Ahmed suffered at the time that he killed Ms Elahi and whether, as a result he has a partial defence. Further, that its decision must be made only on the evidence, the parties' submissions and the directions they are given; that members of the jury must not make their own enquiries on the internet or otherwise, about Mr Ahmed and the circumstances in which he came to kill Ms Elahi; and that they are not to take into account anything that may have already have come to their attention about those circumstances.
There is no question that there is a risk, which exists at every trial, that a member of the jury will not adhere to such directions, but will access prejudicial material of the kind on which Mr Ahmed relies, to advance this application. Nevertheless, as observed in Hughes at [64]: "As discussed in Dupas, at [26], it has been long settled that: ".. the experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously. The point was made as follows by Hughes J, with the endorsement of the English Court of Appeal, in R v Abu Hamza [See [2007] QB 659 at 685-686]: "Extensive publicity and campaigns against potential defendants are by no means unknown in cases of notoriety. Whilst the law of contempt operates to minimise it, it is not always avoidable, especially where intense public concern arises about a particular crime and a particular defendant before any charge is brought. Jurors are in such cases capable of understanding that comment in the media might or might not be justified and that it is to find out whether it is that is one of their tasks. They are capable of understanding that allegations which have been made may be true or may not be and that they, the jury, are to have the opportunity and responsibility of hearing all the evidence which commentators in the media have not and of deciding whether in fact the allegations are true or not. They are not surprised to be warned not to take at face value what appears in the media, nor are they these days so deferential to politicians as to be incapable of understanding that they should make no assumptions about whether any statements made by such people are justified or not. They are also capable of understanding and habitually apply the direction that they are given about the standard of proof.""
I do not accept that a different view can be taken in this case, despite the combination of factors relied on to advance Mr Ahmed's case. I am thus also not satisfied that the interests of justice require that his application for a judge alone trial be granted. To the contrary, what is in issue as to this domestic violence killing has, on the materials advanced, nothing to do with Mr Ahmed's racial background or religion, but on his mental state at the time and whether that provides him with a partial defence. That is a question properly for a jury to decide under s 23A of the Crimes Act, as Harrison J discussed in Bretherton.
In my view, the fact that there have been stereotypical opinions expressed on social media about Mr Ahmed, given that he is a Bangladeshi immigrant of the Muslim faith, or of others of his background or faith, does not give rise to the conclusion that there is a real risk that he will not have a fair trial before the jury, notwithstanding that it may have to consider some distressing photographs of the injuries which he inflicted when he caused Ms Elahi's death.
Regrettably, juries all too often have to consider evidence of that kind, albeit parties nowadays properly seek to limit the tender of such material. In this case it is the defence, it appears, which may seek to rely on such evidence. That the jury may, as a result, have to consider photographs of Ms Elahi's injuries, even when that is considered together with the other matters relied on, I am satisfied does not leave open the conclusion that the interests of justice require that Mr Ahmed not be tried before a jury.

Orders

For these reasons I order that the motion be dismissed.

Amendments 08 May 2019 - Publication restricted lifted DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 February 2023

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