AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
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, NSW
Date: 29 November 2021
Judges: Bathurst CJ; Garling and Wright JJ

Background

The appellant was convicted of murder following a judge-alone trial in the NSW Supreme Court. He killed his wife after discovering text messages confirming she had been engaged in a romantic relationship with a mutual friend. The appellant did not dispute that he caused his wife's death.

At trial, the appellant raised the partial defence of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900 (NSW). This defence, if established, reduces a murder conviction to manslaughter. The onus rested on the appellant to prove the defence on the balance of probabilities. The trial judge rejected the defence and convicted him of murder, imposing a sentence of 27 years with a non-parole period of 20 years and three months.

The appellant sought leave to appeal on two grounds: first, that the trial judge failed to properly apply the principles governing the silence of an accused at trial; and second, that the verdict was unreasonable because the trial judge had improperly rejected the opinion evidence of the expert psychiatrist called by the defence, Dr Nielssen.

  • Whether, in a judge-alone trial, the trial judge was required to expressly direct herself that no adverse inference could be drawn from the appellant's failure to give evidence.
  • Whether a right to silence direction, given in the context of this trial, could be taken to imply that warning.
  • Whether it was legally permissible for the trial judge to draw any adverse inference from the appellant's failure to give evidence, particularly where he bore the onus of establishing a partial defence.
  • Whether the verdict was unreasonable by reason of the trial judge unreasonably rejecting the psychiatric opinion evidence of Dr Nielssen.

Decision

Ground 1: Failure to warn against adverse inference from silence

Section 133(3) of the Criminal Procedure Act 1986 (NSW) requires a judge sitting alone to take into account, and expressly refer to in their reasons, any warning that would have been required to be given to a jury. The Court held that a warning against drawing any adverse inference from an accused's failure to give evidence is, while not technically mandatory in every case, required in most cases. That obligation assumed particular importance here because the appellant bore the onus of establishing the partial defence of substantial impairment.

The trial judge did not expressly give herself that warning. The Court considered whether such a warning could be implied from a right to silence direction the judge had given, but concluded that it could not. Whether a warning can be implied in that way depends on context, and in this case the direction given was insufficient to stand as an equivalent. The absence of the express warning constituted an error under s 6(1) of the Criminal Appeal Act 1912 (NSW), and the appeal was upheld on this ground.

Garling and Wright JJ agreed on the outcome and added observations about the complexity of the evidentiary issues at play. They noted that, given the risk of adverse reasoning and the particular circumstances of the case, an explicit direction consistent with the approach in Azzopardi v The Queen was required. Their Honours also flagged, without finally deciding, that there may be a basis for a further adapted direction in judge-alone trials addressing the weight to be given to out-of-court statements made by an accused who does not testify. They reserved that question for a case where full argument is provided.

Ground 2: Unreasonable rejection of expert opinion

The Court noted that s 23A(2) of the Crimes Act expressly renders inadmissible any expert opinion that an impairment was "so substantial as to warrant liability for murder being reduced to manslaughter." Expert evidence has no role in assessing that ultimate question. Because the appeal succeeded on Ground 1 and a new trial was ordered, the Court declined to further examine the second ground.

Orders Made

No orders were made in this decision.

Key Takeaways

  • In a judge-alone trial, s 133(3) of the Criminal Procedure Act 1986 (NSW) obliges the trial judge to expressly address in the reasons any warning that would have been required in a jury trial, including a direction against drawing adverse inferences from an accused's silence.
  • A warning against adverse inference from silence carries particular weight where an accused bears the onus of establishing a partial defence, such as substantial impairment under s 23A of the Crimes Act 1900 (NSW).
  • Whether a right to silence direction can stand in lieu of an explicit "no adverse inference" warning depends on context. In this case, the direction given did not sufficiently convey the required protection.
  • Under s 23A(2) of the Crimes Act, expert opinion as to whether an impairment is "so substantial as to warrant liability for murder being reduced to manslaughter" is inadmissible. Expert evidence has no role in resolving that ultimate statutory question.
  • Garling and Wright JJ left open, for future argument, whether an adapted direction of the kind approved in Peacock v The King would be appropriate in judge-alone trials where real questions arise about the weight to be given to pre-trial accounts from an accused who does not give evidence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 23A
- Criminal Procedure Act 1986 (NSW), s 133(3)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- 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