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Court of Criminal Appeal 29 November 2021

Ahmed v R

[2021] NSWCCA 280

Homicide
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT TRIAL JUDGE ALONE

Citation: Ahmed v R [2021] NSWCCA 280
Court: Court of Criminal Appeal
Date: 29 November 2021
Judge(s): Bathurst CJ; Garling and Wright JJ

Background

The appellant was convicted of the murder of his wife following a judge alone trial in the NSW Supreme Court. He admitted to inflicting 14 stab wounds that caused her death but did not deny the killing. Instead, he raised the partial defence of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900 (NSW), which, if established on the balance of probabilities, reduces murder to manslaughter.

The defence was built around evidence from two expert psychiatrists. Both agreed the appellant had been suffering from a chronic adjustment disorder manifesting as depression. They disagreed, however, on whether that condition substantially impaired his capacity to control himself at the time of the killing. The appellant did not give evidence at trial.

The trial judge rejected the partial defence and convicted of murder, sentencing the appellant to 27 years imprisonment with a non-parole period of 20 years and three months. The appellant challenged that conviction on two grounds: first, that the trial judge failed to warn herself against drawing adverse inferences from his silence; and second, that the trial judge unreasonably rejected the opinion of his expert psychiatrist.

Legal Issues

  • Whether the trial judge, sitting alone, erred by failing to direct herself that no adverse inference could be drawn from the appellant's failure to give evidence, particularly where the onus of establishing the partial defence lay on the appellant.
  • Whether the trial judge unreasonably rejected the expert psychiatric opinion of Dr Nielssen in concluding that the appellant's abnormality of mind did not substantially impair his capacity to control himself.

Decision

Ground 1: Failure to warn against adverse inference from silence

Bathurst CJ found that the trial judge failed to comply with the requirements established in Fleming v The Queen (1998) 197 CLR 250 and restated in Filippou v The Queen (2015) 256 CLR 47. Under s 133 of the Criminal Procedure Act 1986 (NSW), a judge sitting alone must apply the same directions that would have been required for a jury, including, in most cases, a warning that no adverse inference may be drawn from an accused's failure to give evidence (at [47]).

No such express warning was given. The trial judge's statement that the appellant had "elected not to give evidence, despite the onus which fell upon him" exemplified precisely the reasoning that the warning is designed to prevent (at [49]). The right to silence direction given by the trial judge did not cure that deficiency because, read in context, it could not be taken to carry an implied warning against adverse inference (at [48]-[53]). Garling and Wright JJ added that, where a partial defence places the onus of proof on the accused, it remains impermissible to draw adverse inferences from an accused's silence or to treat the failure to give evidence as adversely affecting the discharge of that onus (at [89]-[90]).

Ground 2: Unreasonable rejection of expert evidence

Even accepting that Dr Nielssen's evidence was unreasonably rejected on the second element of s 23A (substantial impairment of capacity to control), a new trial could not be avoided on that ground alone. The trial judge made an independent and alternative finding that, even if the second element were established, community standards would not permit the reduction of murder to manslaughter (at [58]-[60]). Expert evidence has no role in that third-element assessment, which is a value judgment requiring the application of community standards (at [59]). Because no submissions were directed to the reasonableness of that independent finding, it could not be disturbed on appeal (at [60]). Accordingly, the Court declined to determine this ground definitively, given that a new trial was already required by reason of Ground 1 (at [62]).

Orders Made

  • Leave to appeal granted.
  • Conviction for murder quashed.
  • New trial ordered.

Key Takeaways

  • In a judge alone trial under s 133 of the Criminal Procedure Act 1986 (NSW), a trial judge is required to give herself the same directions that would be required for a jury, and in most cases this includes a direction that no adverse inference can be drawn from an accused's failure to give evidence (at [47]).
  • The obligation to warn against adverse inference from silence is of particular importance where the onus of proof on a key issue falls on the accused, such as the partial defence of substantial impairment under s 23A of the Crimes Act 1900 (NSW) (at [44], [97]).
  • A trial judge's statement that an accused "elected not to give evidence, despite the onus which fell upon him" constitutes the type of reasoning that an adverse inference warning is designed to prevent, and cannot be rescued by a general right to silence direction (at [49], [53]).
  • Under s 23A of the Crimes Act, the third element, whether the impairment was so substantial as to warrant reducing murder to manslaughter, is a value judgment based on community standards to which expert evidence is irrelevant; an alternative finding on that element can be independently fatal to an appeal even where errors exist in the analysis of the second element (at [59]-[60]).
  • Garling and Wright JJ reserved for a future case with full argument whether, in a judge alone trial, a direction adapted from the approved approach in Peacock v The King (1911) 13 CLR 619 might appropriately be given about the weight to be attributed to pre-trial accounts given by an accused who does not give evidence at trial (at [96]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)

Cases
- Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
- GBF v R [2020] HCA 40; (2020) 94 ALJR 1037
- Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
- Peacock v The King (1911) 13 CLR 619; [1911] HCA 66
- Quinn v R [2018] NSWCCA 297
- R v Ahmed (No 2) [2019] NSWSC 517
- R v Byrne [1960] 2 QB 396
- R v Trotter (1993) 35 NSWLR 428
- R v Welsh (1996) 90 A Crim R 364
- R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20
- RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
- Tarrant v R [2018] NSWCCA 21