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Supreme Court 8 February 2019

R v Ahmed

[2019] NSWSC 55

HomicideDomestic & family violence
CRIMINAL LAW NOTICE OF MOTION S 132 CRIMINAL PROCEDURE ACT 1986 (NSW) APPLICATION FOR TRIAL BY JUDGE ALONE CHARGE OF MURDER DOMESTIC VIOLENCE OFFENCE

Citation: R v Ahmed [2019] NSWSC 55
Court: Supreme Court of New South Wales
Date: 8 February 2019
Judge(s): Schmidt J

Background

The accused was charged with the murder of his estranged wife, whom he killed on 18 February 2017. It was not disputed that he killed the deceased. The parties agreed that the central issue at trial would be whether a partial defence of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900 (NSW) was available to reduce a murder conviction to manslaughter.

The accused made application in January 2019 for trial by judge alone under s 132 of the Criminal Procedure Act 1986 (NSW). His solicitor filed supporting affidavits setting out the basis for the application. The Crown opposed it.

The case arose from a relationship between two Bangladeshi immigrants. Marital difficulties, domestic violence, concerns about the accused's mental health, and the deceased's involvement with another man formed part of the background. The killing occurred after an argument about that relationship, and the accused confessed to police. Competing expert psychiatric evidence was to be called at trial.

  • Whether it was in the interests of justice under s 132(4) of the Criminal Procedure Act 1986 (NSW) to order a judge-alone trial.
  • Whether the partial defence of substantial impairment under s 23A of the Crimes Act 1900 (NSW) requires the application of objective community standards, engaging the discretionary consideration in s 132(5).
  • Whether adverse media and social media commentary about the accused's racial background and Muslim faith, combined with the domestic violence context and distressing photographic evidence, created a real risk of an unfair jury trial.

Decision

Schmidt J dismissed the application. Her Honour was not satisfied that the interests of justice required a judge-alone trial, and identified the defence of substantial impairment under s 23A as a matter properly to be decided by a jury.

A central consideration was the structure of s 23A itself. Drawing on the analysis in R v Bretherton [2013] NSWSC 1036, the Court noted that the question under s 23A(1)(b), whether the impairment was so substantial as to warrant reducing murder to manslaughter, calls for the application of an objective community standard. Section 23A(2) expressly prohibits expert opinion on that ultimate question, confirming it is one for the community, represented by the jury, to resolve. This weighed against a judge-alone order.

On the prejudice arguments, Schmidt J accepted that social media posts had expressed stereotypical views about the accused's Bangladeshi background and Muslim faith. However, her Honour found these matters were not relevant to the issue at trial, which concerned the accused's mental state and whether it gave rise to the partial defence. The Crown did not propose to rely on his racial background or religion. The Court was not persuaded that there was a real risk of an unfair trial merely because prejudicial commentary existed online.

The argument that distressing photographs of the deceased's injuries would overwhelm a jury's impartiality was also rejected. Schmidt J observed that juries regularly consider disturbing evidence of this kind, and that parties now routinely seek to limit such material. Notably, it appeared to be the defence, not the Crown, that might seek to tender the photographs in support of its expert's opinion. Taken together, even cumulatively, the factors advanced did not satisfy the Court that a judge-alone order was warranted.

Orders Made

  • The motion for trial by judge alone was dismissed.

Key Takeaways

  • Under s 23A of the Crimes Act 1900 (NSW), the ultimate question, whether an impairment was substantial enough to warrant reducing murder to manslaughter, involves the application of an objective community standard, making it a matter suited to jury determination and a relevant factor weighing against a judge-alone order under s 132(5) of the Criminal Procedure Act 1986 (NSW).
  • Adverse social media commentary about an accused's racial or religious background does not automatically establish a real risk of an unfair trial, particularly where those characteristics are not relevant to the issues the jury must decide.
  • Refusing the application, the Supreme Court found the combination of factors advanced, including domestic violence context, ethnicity, religion, media attention, and distressing photographs, did not cumulatively satisfy the interests of justice threshold in s 132(4).
  • Where the accused's confessions effectively resolve the factual narrative and the real contest lies in conflicting expert psychiatric opinions, that does not of itself justify removing the case from a jury.
  • An accused's application for a judge-alone trial under s 132 may be opposed by the Crown, and the Court retains a discretion to refuse even where both parties might agree, particularly when community standards are engaged by the central defence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 23A (substantial impairment by abnormality of mind)
- Criminal Procedure Act 1986 (NSW), s 132 (trial by judge alone)

Cases:
- Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330
- R v Belghar [2012] NSWCCA 86
- R v Bretherton [2013] NSWSC 1036
- R v Haydar [2017] NSWSC 127
- R v Haydar (No 2) [2017] NSWSC 131
- R v Villalon [2013] NSWSC 1516