Citation: R v Ahmed [2022] NSWSC 1268
Court: Supreme Court of New South Wales
Date: 20 September 2022
Judge(s): N Adams J
Background
The accused stood charged with the murder of his wife, whom he stabbed multiple times at their Parramatta home in February 2017. He admitted killing her but was willing to plead guilty only to manslaughter, relying on the partial defence of substantial impairment under s 23A of the Crimes Act 1900 (NSW). The Crown declined to accept that plea in satisfaction of the indictment, and a full murder trial was required.
A first trial had already taken place before Schmidt J in April 2019. That trial proceeded by judge alone after the Crown, in unusual circumstances, consented to a fresh application shortly before the trial commenced. Schmidt J convicted the accused of murder. The Court of Criminal Appeal allowed his appeal in November 2021 and ordered a new trial.
When the retrial was being scheduled, the accused initially indicated he no longer wished to proceed by judge alone. He subsequently changed his position again and, through new counsel, applied under s 132(1) of the Criminal Procedure Act 1986 (NSW) for the retrial to be conducted by judge alone. The Crown opposed the application.
Legal Issues
- Whether it was in the interests of justice under s 132(4) of the Criminal Procedure Act 1986 (NSW) to order that the accused be tried by judge alone, without the prosecutor's agreement.
- Whether the trial involved a factual issue requiring the application of objective community standards, a matter the court could take into account in refusing the application under s 132(5).
- Whether concerns about pre-trial publicity, prior conviction, and the domestic and cultural context of the offence were sufficient to displace the default position that the trial proceed before a jury.
Decision
Adams J identified the applicable test as whether it was in the interests of justice to make a judge alone order, given the Crown's opposition. The court noted that the legislative scheme preserves trial by jury as the default, and that the accused bore the burden of demonstrating that the interests of justice favoured departure from that default.
The court acknowledged a number of factors raised in support of the application. These included the existence of a prior conviction following the first trial (subsequently quashed), associated media publicity, and the contention that the substantial impairment defence would require the jury to evaluate the accused's conduct against objective community standards in the context of a Muslim marriage and domestic violence. The accused argued that these factors created a real risk of prejudice that a jury, however directed, could not entirely overcome.
Adams J was not persuaded. Her Honour found that any potential prejudice arising from the prior conviction and publicity could be addressed by appropriate jury directions, consistent with the longstanding assumption that juries follow directions given to them by trial judges. The court accepted that this assumption is not absolute, but concluded that the circumstances here did not reach the threshold where directions would be inadequate. The requirement that a jury apply objective community standards was not treated as a reason to remove the fact-finding function from the community itself; rather, the court noted that community representation is the very purpose of the jury system in cases of this nature.
The court also observed, without elaborating, that the procedural history of the first trial, in which the accused and the Crown both shifted positions on the mode of trial in circumstances that were difficult to reconcile, provided additional context. In the result, Adams J was not satisfied that the interests of justice required a judge alone trial, and the application was refused.
Orders Made
- The application under s 132(1) of the Criminal Procedure Act 1986 (NSW) for a trial by judge alone is refused.
Key Takeaways
- Under s 132(4) of the Criminal Procedure Act 1986 (NSW), where the prosecutor opposes a judge alone application, the court must be satisfied that it is in the interests of justice to make the order; the default position remains trial by jury.
- Refusing the application, the Supreme Court held that potential prejudice arising from prior publicity and a quashed conviction was capable of being addressed by appropriate directions to a jury, and did not in this case reach the threshold requiring removal of the matter from a jury.
- Where a trial involves a factual issue requiring the application of objective community standards, s 132(5) explicitly contemplates that this may be a reason to refuse a judge alone order, since community representation through a jury is itself a legitimate feature of such assessments.
- The assumption that juries follow judicial directions is not absolute, and the court acknowledged that some cases will involve prejudice so significant that directions cannot cure it; this case was not found to be one of them.
- A prior conviction later set aside on appeal does not automatically displace a jury trial at the retrial, particularly where the court is satisfied that directions can adequately protect the accused's right to a fair hearing.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 23A (substantial impairment by abnormality of mind)
- Criminal Procedure Act 1986 (NSW), ss 131, 132, 132A
- Criminal Appeal Act, s 5F
- Jury Act 1977 (NSW)
Cases:
- Ahmed v R [2021] NSWCCA 280
- R v Ahmed [2019] NSWSC 55
- R v Ahmed (No 2) [2019] NSWSC 517
- R v Belghar [2012] NSWCCA 86
- R v Dawson [2022] NSWSC 552
- R v Flame [2020] NSWSC 1013
- R v Gokhan Eyuboglu [2019] NSWSC 181
- R v Hadler [2018] NSWSC 1151
- R v Haydar [2017] NSWSC 127
- R v Haydar (No 2) [2017] NSWSC 131
- R v Homann [2018] NSWSC 198
- R v Kerollos [2020] NSWSC 1758
- R v Simmons; R v Moore (No 4) [2015] NSWSC 259
- R v Villalon [2013] NSWSC 1516
- Redman v R [2015] NSWCCA 110
- RKF v R [2016] NSWCCA 116
- Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4