R v Ahmed

Order for Judge Alone Trial: Relevant Legislation

1. Section 132 (1) of the Criminal Procedure Act provides that: (1) An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a trial by judge order).
2. Given that the Crown opposes the application, the relevant test for the Court is as set out in s 132(4) which is in these terms: (4) If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so.
3. Section 132(5) goes on to state: 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.
4. Section 132A of the Criminal Procedure Act provides that: (1) An application for an order under section 132 that an accused person be tried by a Judge alone must be made not less than 28 days before the date fixed for the trial in the Supreme Court or District Court, except with the leave of the court. (2) An application must not be made in a joint trial unless - (a) all other accused person apply to be tried by a Judge alone, and (b) each application is made in respect of all offences with which the accused persons in the trial are charged that are being proceeded with in the trial. (3) An accused person or a prosecutor who applies for an order under section 132 may, at any time before the date fixed for the accused person's trial, subsequently apply for a trial by a jury. (4) Rules of court may be made with respect to applications under section 132 or this section.

The Crown Case

1. In order to assess the question of where the interests of justice lie it is necessary to briefly note the Crown case. I have taken the following facts from the Crown Case Statement.
2. It is the Crown case that between 7:50pm and 9:36pm on 18 February 2017, at Parramatta, the accused stabbed his wife to death in their home.
3. The accused and the deceased married on 9 September 2011 in Bangladesh having been in a relationship for approximately four years at that time. They did not have any children. They lived together at their Parramatta home. The pair came to Australia in 2011 on a student visa, and in February 2015 the deceased gained permanent residency. The accused was a dependant on the deceased's visa. At the time of the killing, both the accused and deceased were employed.
4. The accused and deceased were friends with another couple, Omar Khan and Sharmin Tarique. During 2014, the deceased and Mr Khan both worked at iiNet.
5. In April 2015, the deceased and Mr Khan began spending more time together and developed romantic feelings for one another. Their relationship was purely emotional. Around this time, the accused became suspicious and confronted the deceased and, separately, Mr Khan. The deceased denied any wrongdoing.
6. During 2015 and 2016, the accused and the deceased experienced problems in their marriage. They stopped socialising as a couple. The deceased confided to a medical doctor that the accused had hit her. In September 2016, the police were called to the Parramatta address, where the accused was alleged to have told the deceased that he would self-harm with a knife. The accused told police that his wife was having an affair and he did not know what to do. Police inquiries showed that he had no mental health history.
7. In early October 2016, Ms Tarique found a "love letter" from the deceased addressed to her husband, Mr Khan. She showed the letter to the accused and the two discussed that their partners were likely having an affair. Over the next few months, the accused and the deceased communicated with friends about divorce or separation.
8. On 17 February 2017, the deceased wrote in her diary, "[i]f I die in 2017 that cannot be a natural death. Please investigate my death."
9. On 18 February 2017, the deceased met a friend in the morning and said she wanted a divorce and that she had feelings for a former male co-worker.
10. At around 7.50pm, the accused and the deceased were both at home. A heated argument started about the deceased's relationship with Mr Khan. The accused demanded to see the deceased's mobile phone to go through her messages. The accused dragged the deceased into their bedroom. At the deceased's request, he returned with her to the kitchen where she had some water. The accused picked up a kitchen knife 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." They returned to the bedroom. The accused put the knife on the bed.
11. Eventually, the deceased unlocked her phone, which showed ongoing contact between her and Mr Khan. The accused became enraged, he picked up the knife and stabbed the deceased repeatedly. The deceased was saying, "[f]orgive me Russel". The deceased suffered fourteen stab wounds to the back, right upper chest, right ear and right cheek.
12. The deceased retrieved some cigarettes and smoked over a 10-minute period. At 9.36pm, he updated his Facebook status to, "THE END"; at 9.46pm he changed the deceased's profile picture to a photograph of them together; and at 9.48pm he contacted "Triple-0" and told the operator, "I have killed my wife".
13. Police attended the scene. The accused was covered in blood, but he was calm and showed no emotion. In an ERISP, with the aid of a Bengali interpreter, the accused admitted to stabbing his wife but said he did not want to kill her, and the thought of serious injury did not occur to him. He also said that he had been depressed for some time but was not on medication or seeing a psychiatrist.
14. In 2018, the accused was referred to Dr Olav Nielssen. In a report dated 9 May 2018, Dr Nielssen wrote that he believed the accused would be able to raise the partial defence of substantial impairment. In response, the Crown referred the accused to Dr Adam Martin, who opined (in a report dated 17 July 2018) that while the accused may have suffered from a depressive adjustment disorder, the more likely explanation for the accused's conduct was that he became "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."
15. On the issue of substantial impairment the Crown submits: "1) The accused was aware of his wife's affair and that his relationship with his wife was in jeopardy. 2) He had previously been violent towards her. 3) He had offered to sign the divorce papers previously. 4) He was aware of the deterioration of the marriage for the 2 years prior to the incident. 5) He had armed himself on this occasion with a knife and raised the possibility of him killing her prior to him accessing her phone. 6) He stabbed his wife 14 times while she was repeatedly saying: 'Forgive me Russel.' 7) He failed to render any assistance after stabbing her. Rather, he updated his Facebook status."

The issues for determination at trial

1. The accused relies on expert evidence in support of his partial defence of substantial impairment. At the last trial, a joint expert report of Dr Andrew Martin (for the Crown) and Dr Bruce Westmore (for the accused) dated 28 March 2019 was tendered. It highlights the issues in agreement and dispute in respect of: 1. Any diagnoses of the accused; 2. Whether the accused suffered from any condition or illness at the time of the offence; and 3. Whether the illness or condition was operative at the time of the offence such as to "substantially impair" the accused.
2. In relation to point (a), Drs Nielssen and Martin agreed that at the time of the offence the accused was affected by a depressive illness, diagnosed as a chronic adjustment disorder or a clinically significant response to an adverse life response (being the breakdown of his marriage). The reported symptoms were distress, anxiety, sleep disturbance, impairment of concentration, loss of appetite and weight and fatigue, beginning in early 2015 (as reported to a GP).
3. In relation to point (b), the doctors agreed that the accused's mental state would have fluctuated between 2015 and 2017, and that he would have been experiencing an acute exacerbation of symptoms at the time of the offence triggered by the argument over the deceased's mobile phone and his discovery of her contact with Mr Khan.
4. In relation to point (c), the doctors acknowledged that the question of substantial impairment was ultimately a matter for the court (under s 23A of the Crimes Act). However, they agreed that depressive conditions can result in an abnormality of mind affecting a person's perception of events and that severe depression can impair a person's ability to judge right from wrong and properly control their actions. Dr Nielssen was of the view that the accused was substantially impaired at the time of the offence as a result of his depressive illness and its acute exacerbation. Dr Martin was of the view that the accused had not been grossly impaired in the weeks prior to the offence, and that while a chronic depressive illness / adjustment disorder could render him volatile and erratic, the issue of whether the accused was substantially impaired such that murder should be reduced to manslaughter was a matter for the court.
5. Since the last trial the accused has also obtained reports from Dr Stephen Allnutt and Dr Jerremy O'Dea.

Substantial impairment

1. The main issue at trial will be whether the defence of substantial impairment is established. That defence is set out in s 23A of the Crimes Act as follows: 23A Substantial impairment because of mental health impairment or cognitive impairment (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 a mental health impairment or a cognitive impairment, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. (2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. (3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section. (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. (5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead. (Emphasis added.)
2. There are two limbs to the test for substantial impairment in s 23A(1). The first limb is that set out in s 23A(1)(a), and the second limb is in s 23A(1)(b). The first limb requires the accused to establish that at the time of the offence his capacity to understand events, to judge whether his actions were right or wrong, or to control himself was substantially impaired by his mental health condition(s).
3. There are two questions to be determined as part of the first limb: does the accused have a mental health condition and if so, was he substantially impaired by it in one of the ways set in s 23A(1)(a). Beech-Jones J (as his Honour then was) observed in R v Quinn (No 2) [2016] NSWSC 1244 at [24] that there are thus in fact three elements for the defence to establish on the balance of probabilities which are: 1. That at the time of committing the act the accused was subject to an abnormality of the mind arising from an underlying condition as defined in s 23A(8) of the Crimes Act; 2. That at the time of the stabbing his abnormality of mind substantially impaired at least one of the three capacities in s 23A(1)(a) (to understand events, judge whether his actions were right or wrong or to control himself); and 3. That the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.
4. The Crown expert accepts the first of these three elements. Thus, the first issue in dispute at the trial is whether at the relevant time the accused's abnormality of mind substantially impaired at least one of the three capacities in s 23A(1)(a) (to understand events, judge whether his actions were right or wrong or to control himself). If the jury is so satisfied, the second question is whether the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

Evidence relied upon by the accused on the application

1. The accused relied upon two affidavits of his solicitor, Mr Upol Amin.
2. The first affidavit was sworn on 6 February 2019. It was prepared for the previous (unsuccessful) application before Schmidt J. In addition to noting that the Crown intended to tender a large amount of graphic post-mortem photographs, the nub of the application, as set out in that first affidavit, is that the trial involves a domestic violence killing by a Muslim man on his much smaller wife which attracted considerable publicity.
3. Annexed to Mr Amin's affidavit is a Daily Telegraph online article dated 18 April 2017, over five years ago. That article notes the size difference between the deceased and the accused.
4. Mr Amin notes that when the accused name is searched on Google numerous media articles appear which emphasise words such as "murder", "wife killer", "jealous rage", and "affair". Those articles annexed to his affidavit.
5. In addition to the media articles, an article in the "New English Review" dated 20 February 2017 was annexed which was headed "Muslim man who stabbed wife to death is denied bail".
6. The remainder of the affidavit concerns professed anti-Islamic and other social media groups on Facebook who have shared views about the killing shortly after the arrest in 2017. In some of them, the killing was referred to as an "honour" killing and others include disparaging references to Sharia law.
7. Reliance was also placed on comments made in a Facebook group known as "Reclaim Australia Rally". It is not necessary for me to extract the comments identified in the affidavit. Suffice to say that the comments are critical of Sharia law, demand the deportation of the accused and assert that there was no excuse for what he did.
8. Further reliance was placed on comments on the Channel 7 Facebook page "7NEWS Australia." It was noted that there were a number of angry emojis in relation to an article reporting the killing. Mr Amin deposed that having read through the comments the majority of them were negatively biased against the accused and were racist in nature both directly and indirectly. He identified negative comments about the accused's country of origin, ethnicity, race and religion. He noted the large number of subscribers to that Facebook page and that Channel 9 had a similar Facebook page.
9. In his second more recent affidavit sworn on 14 September 2022, Mr Amin relied upon reportage of the accused's conviction in 2019 and the sentence imposed on him. He deposed that he had seen that media coverage after his conviction and sentencing in 2019 shared through social media, mainly Facebook. That included the Facebook pages of prominent media organisations in Sydney and the rest of Australia such as 7NEWS Sydney and 9News Sydney
10. Mr Amin concluded that his belief is that due the reportage of the murder in 2019, after the accused's conviction and sentence, there is a risk that the accused could not be tried by 12 independent and unbiased jurors.

Crown evidence on the application

1. The Crown relied upon the affidavit of Rebecca Nezval sworn on 19 September 2002 which was confined to outlining the procedural history of the matter.

Submissions on behalf of the accused

1. It was submitted on behalf of the accused that a fair trial is unlikely in this matter if the accused was to be tried by a jury. Four reasons were relied upon by Mr Ramage: 1. The graphic and disturbing nature of the injuries and the photographic material to be relied upon by the Crown; 2. The domestic context of the offence charged and current stereotypes regarding such circumstances; 3. The ethnicity and religion of the accused and current stereotypes surrounding such matters; and 4. The significant general and social media posts about the accused, his conviction on the charge of murder, published decisions as to conviction and sentence and further social commentary.
2. It was submitted that the combination of these circumstances engenders strong prejudice against the accused such that any directions given by the court would not alleviate the situation.
3. Reliance was placed on the observations by Garling J in R v Haydar (No.2) [2017] NSWSC 131 at [44]-[45] extracted below at [81].
4. It was acknowledged on behalf of the accused that the second limb of the test of substantial impairment requires the application of community standards, but it was submitted that that is not determinative of an issue under s 132(4). The legislation contemplates that a single judge may apply those standards. It was further submitted that the overarching test remains whether the interests of justice will be best served by a judge alone trial.
5. In his oral submissions Mr Ramage outlined issues with publicity in relation to the last trial and in particular its domestic violence context where the accused is a Muslim man that is older and bigger than his "much smaller" wife. He also relied on the insulting and "extraordinary and disgraceful" public posts made at that time in relation to Muslims and the religion of Islam including propositions that under Sharia Law Muslims believe they are entitled to kill they wives "whenever they like it".
6. With respect to this trial, Mr Ramage submitted that there is an ongoing problem in that the accused's previous conviction of murder has been "declared to the world at large" and that there is material available on Facebook about that. In addition to that, he submitted that the recent flight from Kabul in Afghanistan has revived "the whole Moslem debate in this country" with respect to "Sharia Law and the treatment of women under Islam" and how "the extreme Moslems" operate.
7. He also submitted that the prosecution will seek to rely on the internet searches made by the accused in relation to "how Islam should treat a wife that was adulterous" and that it may influence the way "the ordinary juror, multicultural though he/she may well be" approaches the question of "the treatment of wives, women generally under Islam."
8. With respect to the community standard test as to whether the accused had an abnormality of mind sufficient to reduce his liability to manslaughter, Mr Ramage submitted that there are "many cases, including Dawson" (that did not involve mental illness) where a judge alone trial has been regarded as appropriate as well as that "there are plenty of cases … where substantial impairment … has been belaboured before a judge alone."

Crown submissions

1. On behalf of the Crown, it was submitted that the relevant principles are derived from the following authorities: R v Belghar [2012] NSWCCA 86 ("Belghar"); RKF v R [2016] NSWCCA 116 ("RKF"); R v Dawson [2022] NSWSC 552 ("Dawson"); R v Haydar [2017] NSWSC 127 ("Haydar"); R v Haydar (No.2) [2017] NSWSC 131 ("Haydar No.2"); R v Villalon [2013] NSWSC 1516; Redman v R [2015] NSWCCA 110; and R Simmons; R v Moore (No 4) [2015] NSWSC 259. I will consider some of those authorities further below.
2. It was submitted that the areas of potential prejudice identified by the accused will not individually or in combination result in the risk of an unfair trial. If there was any risk of prejudice such prejudice would be able to be ameliorated by a direction to the jury: see RKF at [45]-[46]
3. In response to concern as to the prejudice of the autopsy photos, it was submitted that there was no intention to tender those photographs. The evidence regarding the circumstances of that death of Ms Elahi was adduced by way of an agreed fact at the last trial and it was proposed that the same approach would be taken should the trial be by way of jury.
4. In response to the issue of domestic violence generally, it was submitted that the defence had not adduced any evidence in support of any contention that there is "current stereotyping regarding such circumstances". It was submitted that reliance upon the observations made by Garling J in Haydar (No.2) is insufficient. Nor, it was submitted, was this a case where there had been a long history of prior domestic violence and only limited evidence would be adduced.
5. As for the concerns associated with the accused's ethnicity and religion, it was submitted that the fact that the accused is a Bangladeshi Muslim is not a rational basis to conclude that a jury would be prejudiced in such a manner as to result in an unfair trial. It was submitted that the community from which a jury would be drawn is a diverse one which includes people from culturally and racially disparate groups. It cannot be assumed that a pool of potential jurors would be unfairly prejudiced towards the accused. To do so would be to undervalue and simplify the time-honoured strength of the jury system with its common sense and collective wisdom.
6. Further, it was submitted that, contrary to the decision in Haydar and Belghar, the issue of religion plays little apparent part in the commission of the alleged offence and the Crown case. The evidence of it is limited to internet searches.
7. Finally, as for the social media extracts attached to Mr Amin's earlier affidavit, it was submitted that the effluxion of time since they published is such that the risk of the jury having seen and remembered that reporting would be substantially diminished. In any event, any perceived prejudice could be ameliorated by directions. It was noted that there had not been any recent publicity nor has there been any public discourse or commentary by members of the criminal justice system such as occurred in the case of Dawson.

Relevant authorities

1. The application turns on where the "interests of justice" lie. On this question Wilson J stated the following in R v Hadler [2018] NSWSC 1151 ("Hadler") at [62]: "[62] The phrase 'in the interests of justice' is one which imports a wide and likely open-ended sweep of issues. The phrase is commonly used, and may comprehend many factors: State of Western Australia v Rayney [2011] WASC 326. It has been regarded as undesirable to attempt to define it: O'Hare v DPP [2000] NSWSC 430. In the present context, the interests of justice must comprehend the interests of the accused, the Crown, and the community, as well as other wider considerations of justice. What may be in the interests of justice in a particular case will depend on all of the facts and circumstances pertaining to that matter."
2. More recently in Dawson, Beech-Jones J observed the following at [10] regarding the phrase "interests of justice" in this statutory context (footnotes omitted): "[10] Generally, the phrase 'interests of justice' envisages a broad assessment of a variety of matters, some concerning the interests of the parties to the litigation, but also 'interests wider than those of either party' (BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [15], and at [169] and [172]). In the context of s 132, in R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1 ('Belghar'), McClellan CJ at CL held that s 131 does not create a presumption that the trial should be with a jury which an accused person must discharge. Instead, as each form of trial has its own characteristics, and depending on 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. Further, the subjective views of an accused, and his or her belief that a jury trial may not be fair, are relevant factors to consider however they are far from determinative. What is more significant is the reason for that preference, whether those reasons are rationally justified, and whether they bear upon the question of a fair trial. The mere apprehension of prejudice in prospective jurors, not based on evidence or a matter of which the court may take judicial notice, is not sufficient to make such an order as it is contrary to 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."
3. As Gleeson CJ observed in Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4 at [7], trial by jury "has the important collateral advantages of involving the public in the administration of justice, and of keeping the law in touch with community standards".
4. Decisions under s 132 usually turn on their own facts and the statute confers a broad discretion: R v Homann [2018] NSWSC 198 at [6], [9] per McCallum J (as her Honour then was).
5. As for s 132(5), it is well established that the "second limb" of the partial defence of substantial impairment involves an application of community standards in determining whether the impairment was so substantial as to warrant liability for murder being reduced to manslaughter: R v Gokhan Eyuboglu [2019] NSWSC 181 ("Gokhan Eyuboglu") at [13] per Button J. That question is ordinarily one that is best suited to determination by a jury: Hadler at [60] per Wilson J. This does not however preclude the making of an order for a judge alone trial in cases involving substantial impairment. As Button J went on to observe in Gokhan Eyuboglu at [26], that rule is not absolute and such issues are determined by judges and magistrates on a daily basis.
6. In Belghar, McClellan CJ at CL observed the following on this issue at [100]: "[100] Where an alleged offence involves objective community standards, the Parliament has made plain that it may be preferable, 'in the interests of justice', that there should be trial by jury."
7. Similarly, in R v Flame [2020] NSWSC 1013 Button J observed the following at [71]-[72] in relation to the defence of substantial impairment: "[71] As for that component [the second limb test], I believe that it is quintessentially a matter for the reflection and discussion of twelve members of the community. In my respectful opinion, it is a question that is only answered with great difficulty -and perhaps not entirely satisfactorily - by a single person, who inevitably brings his or her individual if not idiosyncratic thoughts and feelings about the world and the human beings who inhabit it to the question. [72] Other judges have spoken about the difficulty of grappling with the normative question: see, for example, the judgment of Hamill J in R v Hutchison & Wilkinson [2018] NSWSC 1759; as have I: see R v Eyuboglu [2019] NSWSC 181. And yet in my experience, juries have no difficulty in coming to a verdict that reflects their answer to the normative question: see as an example only R v Cadman [2019] NSWSC 634. That is understandable, because they engage in an intense process of discussion and reflection between a large number of persons in which their thoughts and feelings about the two different forms of homicide are able to be fully developed."
8. Button J in that case considered himself poorly qualified to answer the normative question (the second limb test) of substantial impairment.
9. Of the cases the Crown relied on relevant to the present application, I have found Belghar to be of assistance, not only insofar as the relevant principles are concerned but it raised different issues. In that case the accused was charged with offences of violence on his sister-in-law. He made a successful application for trial by judge alone. The Crown the successfully appealed under s 5F(2) of the Criminal Appeal Act 1912 (NSW).
10. The accused was married to the complainant's older sister (Hanife) and had been for 11 years at the time of the offences. The Crown case was that on a day in October 2009, the complainant, Hanife and another friend went to the beach without the accused's knowledge. When Hanife returned home and disclosed where she had been, the accused telephoned the complainant and said, "[y]ou slut, I'm going to kill you. I'm going to fuck you up. I'm going to find you and kill you. You fucking slut, how dare you take my wife to the beach." Later in the evening on 22 December 2009, the accused and Hanife coincidentally ran into the complainant and her brother at a shopping centre. When the complainant was waiting in the carpark, the accused approached her with a key in his right hand; he put his face against hers and said, "I'm going to kill you. I'm going to fucking kill you." The accused slapped the complainant to her face and then picked her up and held her over the railing on the boundary of the multi-story carpark. The complainant's brother then came to her aid.
11. The short reasons provided by the trial judge in granting the accused's application for trial by judge alone, included the following: "The attitude of the [respondent] regarding the sister-in-law victim is based on a religious or cultural basis and in light of the fact that there has been adverse publicity regarding persons who hold extreme Muslim faith beliefs in the community, I am of the view that the apprehension by the [respondent] that he may not receive a fair trial is a reasonable apprehension. … The reason for the animosity between the applicant and the victim as suggested by the Crown will be that the victim took the applicant's wife to the beach where the applicant's wife displayed her body because she was seen by the applicant to be sunburnt in her certain places on her body and this was abhorrent to the applicant by virtue of either his strict religious beliefs or by virtue of the fact that he believed he had absolute authority over the wife as opposed to the wife's family having some authority over her. … In this particular case there is direct reference to aspects of the Muslim faith which may cause a jury to take their mind off the central issue which is a single issue, that is, what was the intent of the applicant at the point in time that he came into contact with the victim at the Broadway shopping centre."
12. The Court of Criminal Appeal upheld the Crown appeal and quashed the trial judge's decision. McClellan CJ at CL (with whom Hidden and Hislop JJ agreed) stated that a judge's decision "must be founded upon evidence" and that an accused's apprehension of the prejudice of jurors must be "soundly based" (at [101]). His Honour characterised the accused's position as a fear "that a jury may be prejudiced against him because of his conservative Muslim beliefs" (at [104]). And then at [107]-[108]: "[107] It may be accepted that from time to time adverse publicity is given to events which have occurred, generally outside Australia, where the strict application of a form of Muslim law or Islamic tradition has given rise to the treatment of a woman or women in a manner which is generally unacceptable to ordinary Australians. It may also be that some people in the Australian community harbour prejudice against persons who adhere to the Muslim faith, particularly against those holding 'conservative' views about the place and role of women in marriage or in wider society. However, without evidence that such views are widespread in the Australian community and would be likely to influence jurors, it must be assumed that the protection afforded an accused person in the ordinary course of a trial will protect him or her from an unjust result. Those protections include the practice that before jurors are selected, each member of the panel will be reminded of their obligation to bring an impartial mind to the decision, and after being informed of the alleged offence, the identity of the accused, and the nature of the issues in the trial, asked to consider whether they can fairly consider the relevant issues. In the present case the jury would be told that the accused is a Muslim and that an issue in the trial is whether his actions in respect of his wife's sister were motivated by his attitude to the role of women in marriage. There will of course be extra protection afforded to the appellant by the trial judge's directions to the jury, which will remind them that they must decide the case having regard to the evidence and be careful not to let any prejudice they may have influence the decision. The jury may conclude that the respondent acted as he did because of his strict Muslim views, but this would be a conclusion founded upon the evidence and not resulting from any prejudice against Muslim people. The respondent's conservative views in relation to women may be an important element in the Crown case, but not because of any inherent prejudice in the community against persons who hold those views. [108] The primary judge did not approach the issue in this manner. There was no evidence of the existence in the community of the prejudice which was asserted. His Honour did not consider whether, if such a prejudice exists, it could be neutralised or removed by the directions of the trial judge. Although I recognise the caution which this Court must take when asked to reconsider the decision of a trial judge made under s 132, I am satisfied that in the present case the decision which his Honour made was not open. His Honour did not have evidence to allow him to make the finding which he did. Furthermore, his Honour did not consider whether by following the conventional procedures for trial by jury the prejudice which the respondent feared could be avoided. For these reasons the appeal must be upheld and the decision of the primary judge quashed." (Emphasis added.)
13. The accused relied upon the observations of Garling J in R v Haydar (No.2) [2017] NSWSC 131. That was the second of two applications for trial by judge alone. The first application was refused: R v Haydar [2017] NSWSC 127. The second application, made about two weeks later, was granted. The accused was charged with the murder of his wife and wounding with intent in respect of his daughter. He pleaded not guilty to murder but offered to plead guilty to manslaughter on the basis of substantial impairment and the alternative count to the wounding with intent offence, being reckless wounding.
14. The Crown case was that on 30 March 2015, the accused and the deceased (his wife) had an argument over the accused's lack of help around the house; the deceased said he would have to move out if he did not improve. One of his daughters was upstairs and heard a scream. She ran downstairs and saw the accused stabbing the deceased repeatedly with a knife. She tried to intervene and sustained serious injuries to her hand. The accused left and later handed himself into police.
15. On the first application, the accused raised matters relevant mainly to the efficient running of the trial (including because of the late service of certain evidence). In refusing the application, Garling J said at [36]-[37]: "[36] In my view, in this case, the circumstances involved in the application of the tests under s 23A(1)(b) of the Crimes Act, and whether the impairment is sufficiently substantial in the circumstances of the case to warrant the reduction of the charge from murder to manslaughter, is a question which requires the application of objective community standards. In particular, the circumstances require consideration of the role and place of domestic violence in our society; the role and place of cultural views with respect to the relationships between people born into cultures different to our own; and finally, an assessment of the impact of a readily understandable psychiatric condition, namely, depression, on the day-to-day life and operation of the accused. [37] In my view, these are matters which are best determined by a jury of the accused's fellow citizens. Their combined wisdom and experience from all different walks of life brings a richness to the decision-making process that would be absent if the matter was decided by a judge alone. The interests of justice in this case are, in my view, such that by reason of the principal issue to be decided, the best course is that the trial be heard by a judge and jury." (Emphasis added.)
16. The second application was made "in the context of significantly different circumstances" (Haydar (No.2) at [3]). Since the first application, Garling J had discharged two juries as a result of jury notes received to the effect that jurors could not concentrate on the evidence or were too affected by the subject matter of domestic violence. In addition, the triple-0 call in which the deceased could be heard dying whilst her daughter tried to help was emotionally charged. When the accused made a fresh application for trial by judge alone, he raised additional matters, including [at 22(c)]: "A real and highly prejudicial risk that, given the undisputed facts about the accused being a Lebanese man from a traditional Muslim background and his significantly younger wife, who had a more relaxed attitude to the Muslim faith, being involved in an argument which resulted in the husband killing the wife, the jury would view the events as falling into a stereotype or pattern of behaviour defined by racial or religious features."
17. During the consideration of a range of matters advanced by the accused, Garling J stated the following at [44]-[45] under the heading "Racial and Religious Stereotype" (these were the two paragraphs relied upon by the accused in the present application): "[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."
18. As stated, Garling J granted the second application given the change in circumstances.

Consideration

1. I am satisfied that, by Mr Ahmed's signed election of 2 September 2022, he has confirmed that he had sought and received legal advice in relation to his application for trial by judge alone. I am also satisfied that the application was made within time: s 132A(1) of the Criminal Procedure Act. The application was foreshadowed on 31 August, confirmed on 7 September 2022 and the notice of motion was filed on 14 September 2022. Accordingly, the application has been lodged within 28 days of the trial listing.
2. The primary issue is whether it would be in the "interests of justice" for the trial to proceed by way of judge alone having regard to, inter alia, s 132(5) of the Criminal Procedure Act which specifies that one basis for finding that a trial should proceed with a jury is when it involves "a factual issue that requires the application of objective community standards". This is clearly such a case.
3. In this case, the jury will be required to consider the expert evidence regarding the accused's abnormality of mind as well as the facts of the killing of the deceased in the context of their previous relationship together. If the jury is satisfied that at the time that he killed his wife the accused's abnormality of mind "substantially impaired" at least one of the three capacities in s 23A(1)(a), then the jury will also have to consider whether that impairment was so substantial as to warrant liability for murder being reduced to manslaughter. This second test clearly requires the application of objective community standards. The matters raised on behalf of the accused fall to be considered in that factual context.
4. I am not persuaded that the four matters identified on behalf of the accused in support of this application viewed separately or collectively would lead to the view that the interests of justice require this trial to proceed by way of judge alone.
5. The first of the four matters relied upon by the accused was abandoned during the hearing when it was confirmed in court that the Crown does not propose to tender any post-mortem photographs of the deceased. It is anticipated that evidence will be before the court by way of an agreed fact.
6. As for the second matter, I have considered the submissions concerning the nature of the offence being one of domestic violence. Although reliance was initially placed under this heading on the significant age gap between the accused and the deceased, it was accepted that as the deceased was born in 1987 and the accused was born in 1983 there was only a four-year age gap between them.
7. As I understood the argument in relation to this issue, it was also contended that the jury would be prejudiced in a domestic violence case by the fact that the accused was physically larger than the deceased. Support from this was derived from the photographs of the couple included in the reportage. I am not satisfied that this fact would prejudice the accused in the minds of the jury. It seems to me that there is nothing unusual about a man on trial for killing his wife being physically larger than the deceased. It could hardly be a reason to require a judge alone trial. In the present case, it is part of the factual matrix. I do not understand the Crown to be otherwise placing any particular weight on the fact.
8. The third argument, which overlapped with the second, relied on prejudice arising from the accused adhering to the Muslim faith. As the principles derived from the decisions I have considered above make clear, there has to be a proper basis for such a contention. Reliance was placed on recent events in Afghanistan as causing prejudice in the present trial, but the accused is a Bangladeshi man. The only reference to him being of the Muslim faith in the Crown case is the fact that some of the internet searches he made as to how to punish an "unfaithful wife" referenced his faith.
9. The relevance of the internet searches to the Crown case is no doubt that they might be considered consistent with the accused planning to kill his wife and inconsistent with the partial defence of substantial impairment. However, of the 48 searches he made (over a relatively short period of time) it was accepted that the first 27 of them made no reference to his faith and simply sought answers to the question of how to punish an unfaithful wife per se. It was not until the 28th search that the accused first posed the question of how to punish a Muslim wife.
10. I accept that it is possible that some prejudice may arise from the searches and the fact that a man may consider it appropriate to punish his wife, but the jury will be directed as to how those searches are relied upon by the Crown and I am satisfied that any prejudice could be avoided in that regard.
11. I have already identified the factual differences between this case and those in the Haydar and Belghar above. To the extent that the accused relied on the observations of Garling J in Haydar (No.2) at [44]-[45], those observations were only part of a number of reasons why his Honour ordered the trial to be by way of judge alone, including that there had been two aborted jury trials by that time.
12. Finally, as for the adverse publicity, it all took place in 2017 and 2019. The earlier decisions in this matter have been taken down from the Caselaw website. As for the newspaper articles, the futility of making orders that such articles be taken down is now accepted given that it is not possible to know how many links have been shared through social media. Again, as Hamill J observed in Simmons (No 4) at [84] in relation to applications for judge alone trials based on adverse publicity, "[o]verwhelmingly it has [been] held that the prejudice identified in the application is capable of being overcome by direction[s] to the jury".
13. It is to be accepted that if a jury member was to commit an offence contrary to the Jury Act 1977 (NSW) and make internet inquiries about this case they would no doubt become aware of the results of the previous trial before Schmidt J. But the jury system must proceed on the basis that jurors do not ignore directions and are willing to commit criminal offences rather than act in accordance with their oath or affirmation to consider the trial solely on the evidence.
14. The comments in the social media posts in 2017 and 2019 annexed to Mr Amin's first affidavit are breathtakingly intolerant, but I am not persuaded that the fact that people exist in our society who feel free to publish vitriol through the anonymity of a social media post means that a jury sworn or affirmed to consider a case on the evidence would not be able to bring an impartial mind to bear. In any event, the experience of the courts is that when the jury panel is made aware of the issues in the trial, they are asked whether they wish to be excused on the basis that they cannot bring an impartial mind to bear. This is another relevant safeguard.
15. I have also had regard to the submission made on behalf of the accused, based on the observations of Beech Jones J in R v Dawson (at [11] and [45]) that a judge alone trial with the requirement that reasons be provided can be more transparent than a jury trial. Similar observations were made in Belghar at [112]. Those observations were made in the context of concerns that a judge alone trial would not be in the interests of justice; they do not suggest that a trial by judge alone is in any way superior to a jury trial.
16. I have also considered Mr Ramage's submission that the trial would proceed more quickly by judge alone rather than with the jury. Although that is invariably the case and can be a relevant consideration in applications such as this, the Crown case is expected to only take three days in any event. I have not considered that to be a relevant factor in this particular case.
17. In each case the determination of where the interests of justice lie will require the court to weigh the desirability of a jury trial against potential prejudice identified by an accused. Having undertaken that balancing process, I am not satisfied that the interests of justice require a judge alone trial in this matter. I am not satisfied that any of the matters raised by the accused mean that the accused would not get a fair trial if his guilt was to be determined by 12 lay persons in the community rather than by me sitting alone. It is my role as judge to ensure that the accused receives a fair trial, and I will provide whatever directions are necessary to ensure that he does.
18. Finally, in concluding that any potential prejudice could be cured by jury directions, I accept that there will be cases where no directions can cure the identified prejudice. As Button J observed in R v Adams (No 2) [2016] NSWSC 1359 at [55] and [56]: "[55] It is undoubtedly true that the criminal justice system proceeds on the assumption that juries obey direction about all manner of things, including pre-trial publicity, information on the internet, the exercise of the right to silence, and the criminal standard of proof. But as Gleeson CJ and Gummow J said in Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13], there must also be recognition that that rule is not an absolute one. There, their Honours said: [13] The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice. [56] Furthermore, for over a century both the common law and Parliament have accepted the proposition that juries will not always analyse probative evidence without emotion: the common law by way of the discretion first identified in R v Christie [1914] AC 545; (1914) 10 Cr App R 141, and Parliament by way of the analogous evaluative judgment contained in s 137 of the Evidence Act.
19. Button J was not satisfied in that case that the prejudice of multiple sexual assault victims called as tendency witnesses in a murder trial could be cured by directions and ordered a judge alone trial.
20. For these reasons, I would refuse the application.

ORDERS

1. Accordingly, I make the following order: 1. The application under s 132(1) of the Criminal Procedure Act 1988 (NSW) for a trial by judge alone is refused. 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 August 2024