R v Ahmed

1. [1]

   Mr Ahmed has pleaded not guilty to the murder of Khondkar Fariha Elahi who, there is no dispute, he killed on 18 February 2017. By motion filed in January 2019, which is supported by affidavits sworn by Mr Ahmed’s solicitor, Mr Amin he made application under s 132 of the Criminal Procedure Act 1986 (NSW), for trial by judge alone. The Crown opposes his application.

2. [2]

   It is common ground that at trial what will arise to be resolved is Mr Ahmed’s mental state at the time that he killed Ms Elahi and whether it was such as to give rise to a partial defence under s 23A of the Crimes Act 1900 (NSW). That will depend on expert evidence which may require the tender of some disturbing photographs, even though there will be little, if any, dispute about the facts. The experts have produced reports and it is proposed that before trial, they will confer as to those matters about which they do not agree.

3. [3]

   In the circumstances, it is common ground that an order for a judge alone trial may be made if the Court considers that it is in the interests of justice to do so: s 132(4). Relevantly s 132(5) provides:

4. [4]

   Whether it is in the interests of justice for Mr Ahmed’s trial to be by judge alone, was in issue.

The parties’ cases

1. [5]

   The case advanced for Mr Ahmed in written submissions was that a fair trial was unlikely before a jury for the following reasons:

2. [6]

   Reliance was placed on the Crown case statement, which indicated amongst other things that:

   1. (1)

      Mr Ahmed married Ms Elahi in Bangladesh in 2011, after which they came to Australia on a student visa. Ms Elahi first studied and obtained a Masters degree in accounting before obtaining work, while Mr Ahmed obtained work at a hotel.

   2. (2)

      Over time difficulties developed in the marriage, including domestic violence, concerns about Mr Ahmed’s mental health and Ms Elahi developing a relationship with another man.

   3. (3)

      Mr Ahmed returned to Bangladesh in November 2016, and a separation and divorce was contemplated. He returned to Australia in February 2017 after which Ms Elahi made diary entries which reflected that she feared for her life and confided in friends about Mr Ahmed’s behaviour towards her.

   4. (4)

      There was an argument at their home on 18 February 2017 about Ms Elahi’s other relationship, which became physical and resulted in Mr Ahmed being given access to her phone at knife point, after which he inflicted 14 stab wounds, which led to Ms Elahi’s death. Before he contacted 000 he made various entries on Facebook. He confessed to her killing during the 000 call, when police attended and during an electronically recorded interview, conducted with the assistance of an interpreter. He then said that he had not been drinking or taking drugs, had been depressed for some time and had seen a psychiatrist, but was not on medication.

   5. (5)

      The psychiatrist Dr Martin later examined Mr Ahmed and concluded that he had an adjustment disorder with depressive symptoms for some 2 years prior to Ms Elahi’s death, but that the more likely explanation for her killing was that he had become enraged by what he saw on her phone and had then stabbed her repeatedly, out of jealousy and perceived humiliation.

3. [7]

   It was a combination of circumstances, which it was argued for Mr Ahmed, would engender strong prejudice against him which directions to a jury could not alleviate, notwithstanding that it is expected that jurors do abide by the directions of law which they are given at trials.

4. [8]

   Those circumstances were explained to include that Ms Elahi’s death had occurred in circumstances of domestic violence; the physical differences between Mr Ahmed and Ms Elahi; the fact that Mr Ahmed was a Bangladeshi immigrant of Muslim faith; the adverse media and social media attention which the killing had attracted, examples of which were attached to Mr Amin’s affidavit; and the disturbing nature of the photographs which might have to be tendered in the defence case, in order to explain the opinion which Dr Nielssen had arrived at.

5. [9]

   The Crown disputed that these circumstances gave rise to a risk that there could not be a fair trial, or that the jury would not adhere to the directions it would be given, as to matters such as impartiality, deciding what was in issue on the evidence and not making their own enquiries about Mr Ahmed and Ms Elahi by internet searches.

6. [10]

   The Crown thus opposed the application, contending that Mr Ahmed’s defence of substantial impairment involves the application of community standards in the application of the tests specified in s 23A(1)(b) of the Crimes Act and whether any impairment he suffered is sufficiently substantial to warranted the reduction of the charge of murder to manslaughter: R v Haydar [2017] NSWSC 127 at [36]. It did not turn on Mr Ahmed's racial background or religious views.

The application must be refused

1. [11]

   Because of Mr Ahmed’s confessions and what he later told those who examined him, there is no real dispute about how it was that he came to kill Ms Elahi as he did.

2. [12]

   The case which the Crown will advance is that what the jury will have to resolve is the issue lying between the parties as the result of the conflicting expert opinions, it contending that Mr Ahmed killed Ms Elahi in rage, when her infidelity was confirmed. His racial background and religious beliefs are not relevant to what is in issue and will not be relied on as part of the Crown case.

3. [13]

   Mr Ahmed will advance a partial defence based on substantial impairment. Whether that defence is made out will depend on the resolution of the differences in the opinions of Dr Martin and Dr Nielssen, s 23A of the Crimes Act relevantly providing:

4. [14]

   In R v Bretherton [2013] NSWSC 1036, Harrison J observed as to s 23A of the Crimes Act, at [25] – [26] that:

5. [15]

   In the Second Reading Speech it was said “Proposed new section 23A(1)(b) is the centrepiece of the new defence. It returns the jury to the central position of assessing the culpability of the accused person. …. In coming to its verdict, the jury brings to bear the community's collective wisdom and its sense of justice.”: cited in R v Bretherton at [22].

6. [16]

   The history which Mr Ahmed gave both Dr Martin and Dr Nielssen included that he had enjoyed general good health and fitness; had not taken illegal drugs; had never abused alcohol, which he rarely drank; had no criminal record; and no history of mental illness, apart from having reported to his GP being depressed in 2015, in connection with Ms Elahi’s desire for a separation. He was then referred for counselling, which he received from Relationships Australia. In March 2017, while in custody, the psychiatrist Dr Hearps had diagnosed him to be suffering an adjustment disorder with depressed mood and prescribed antidepressants, which he continued to take. That followed Mr Ahmed’s report that his symptoms had become acute, immediately after the offence.

7. [17]

   Dr Nielssen considered that Mr Ahmed did not have a mental illness which might have deprived him of the awareness that his actions were wrong, when he killed Ms Elahi and so had no defence of mental illness. But that he did have a partial defence of substantial impairment by abnormality of mind under s 23A of the Crimes Act, because of a depressive illness which followed Ms Elahi’s advice that she wanted to end their marriage, which worsened when he discovered that she was having an affair.

8. [18]

   Dr Nielssen considered that Mr Ahmed had killed Ms Elahi during an acute exacerbation of that condition, triggered when he discovered intimate text messages at a time when he had returned to Australia to resume the marriage.

9. [19]

   Dr Martin considered Dr Nielssen’s opinions. He came to the conclusion that it was more likely than not that Mr Ahmed had an adjustment disorder with depressive symptoms in the two years leading up to the killing. He considered that a person with depressed mood in the context of relationship conflict might be more prone to overreacting to perceived provocation and thus, it might be argued, that Mr Ahmed was then substantially impaired. But he also said that adjustment disorders are generally not considered to be in the severe end of mental disorders; are relatively common; and generally do not cause severe impairment, consistent with the level of function, which Dr Martin considered the history which Mr Ahmed gave had evidenced.

10. [20]

    In the result Dr Martin concluded that while Mr Ahmed may have had some depressive symptoms, the rational explanation was that he was enraged when he found evidence on his wife’s phone of the affair, at knife point and then repeatedly stabbed her out of jealousy and perceived humiliation. While an adjustment disorder may have made him over sensitive, he was then in control of his actions and functioning reasonably well up to that point, when he was not significantly impaired.

11. [21]

    The operation of s 132 was considered in R v Belghar [2012] NSWCCA 86, discussed by Bellew J in R v Villalon [2013] NSWSC 1516 , who observed at [20]:

12. [22]

    The circumstances which here arise to be considered were argued for Mr Ahmed to be similar to those considered by Garling J in R v Haydar (No 2) [2017] NSWSC 131 at [44] – [45], where his Honour observed as to racial and religious stereotypes:

13. [23]

    His Honour reached this conclusion in circumstances where time had been lost during two failed attempts to empanel a jury, with jurors seeking to be excused, after empanelment, despite significant attempts to avoid that result and his Honour accepting that there was a real risk that any further jury may be affected by the prejudices which his Honour had discussed.

14. [24]

    There the jury had been discharged after notes came from two jurors, one who advised that because the matter involved domestic violence and because they had a particularly strong view about domestic violence, they had concluded that the accused was guilty and did not feel able to give impartial consideration to the trial. The other identified that members of his family lived in close proximity to the address where the offence had occurred and expressed fears for the security of he and his family members, in light of his participation on the jury. A third juror had been observed in court as being unable to engage in the Court’s processes, evidenced by failing to give any attention to counsel’s remarks, flicking through the bible and placing his head in his hands and staring at the ground.

15. [25]

    It is common ground that Ms Elahi’s death also occurred in circumstances of domestic violence. There are graphic photographs of the injuries Mr Ahmed inflicted, three being relied on for this application. It appears that she was of petite stature, while Mr Ahmed was physically significantly larger.

16. [26]

    Annexed to Mr Amin’s affidavit was an article published in the Daily Telegraph online on 18 April 2017, which described Mr Ahmed , as a “giant”, as well as other articles and discussions on social media. Mr Amin attested that there had been considerable other media coverage of Ms Elahi’s killing, the laying of the charge against Mr Ahmed and the refusal of bail. A Google search of his name results in numerous media articles about the killing, as well as sensationalised headlines in some of them. Such media coverage has been shared on Facebook, including on Facebook pages of media organisations including 7 News Sydney and 9 News Sydney and “professed anti-Islamic” and other groups Mr Amin identified, with many Facebook users sharing “negatively biased views against Mr Ahmed”, copies of some of which were also annexed.

17. [27]

    Mr Amin also referred to over 1000 “emotional reactions” by use of an emoji symbol or facial expression, posted on Facebook about such stories and posts, the majority negative. Mr Amin also described the majority of the comments to have been racist in nature, both directly and indirectly.

18. [28]

    Sadly, all too many killings which juries have been called on to deal with at trials involve the violent deaths of women caused by their husbands or partners, that requiring those juries to consider confronting evidence, including photographs of the kind which may need to be tendered in this case. It is also not unusual in such cases for juries to have to consider evidence about an alleged offender’s mental state, in determining whether the Crown has established its case.

19. [29]

    But the infliction of violence in domestic circumstances is not confined to members of our community who are of particular racial origin or religion. Ours is a community comprised of people who have not only been born here, but who have come from every corner of the world and who adhere to many different religions, or none at all.

20. [30]

    That there has long been real community interest and concern about deaths which involve domestic violence is understandable and well known. That is nowadays not only reflected in considerable media coverage, when alleged offenders are apprehended and charged, but also in resulting discussion on social media, which unsurprisingly is commonplace. On the evidence, when Mr Ahmed was arrested and charged, there was such coverage and discussion.

21. [31]

    In Mr Ahmed’s case, what is in issue does not relate either to his racial origin or his religion, but to his mental state and the consequences of mental illness which he may have suffered at the time that he killed Ms Elahi.

22. [32]

    Despite this, some of this adverse coverage was directed to Mr Ahmed’s background as a Bangladeshi immigrant and his presumed membership of the Muslim faith. Some of it was in considerably derogatory terms. There is no issue that such material is still readily accessible on the internet, by Google search for example. If the trial proceeds before a jury, it will thus have to be given directions about not accessing material of that kind, as well as how it must approach its task.

23. [33]

    The impact of such extensive, prejudicial pre-trial publicity on the fairness of a jury trial where such directions were given, arose for consideration in Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330. There the appellant was a well-known actor who had unsuccessfully defended serious charges involving sexual offences against children. That is also offending about which there is considerable community concern and interest, which the evidence established in that case was reflected in very extensive media coverage, as well as prejudicial, derogatory discussion and even ridicule of the appellant, pursued on social media. Nevertheless, it was concluded that did not establish that he had not received a fair trial: at [67]. There it was also observed:

24. [34]

    Here it was also accepted by Mr Ahmed that take down orders would not be effective.

25. [35]

    At trial the jury would thus have to be given directions which include that they must impartially approach the resolution of the issue lying between the parties as to the nature and impact of the condition Mr Ahmed suffered at the time that he killed Ms Elahi and whether, as a result he has a partial defence. Further, that its decision must be made only on the evidence, the parties’ submissions and the directions they are given; that members of the jury must not make their own enquiries on the internet or otherwise, about Mr Ahmed and the circumstances in which he came to kill Ms Elahi; and that they are not to take into account anything that may have already have come to their attention about those circumstances.

26. [36]

    There is no question that there is a risk, which exists at every trial, that a member of the jury will not adhere to such directions, but will access prejudicial material of the kind on which Mr Ahmed relies, to advance this application. Nevertheless, as observed in Hughes at [64]:

27. [37]

    I do not accept that a different view can be taken in this case, despite the combination of factors relied on to advance Mr Ahmed’s case. I am thus also not satisfied that the interests of justice require that his application for a judge alone trial be granted. To the contrary, what is in issue as to this domestic violence killing has, on the materials advanced, nothing to do with Mr Ahmed’s racial background or religion, but on his mental state at the time and whether that provides him with a partial defence. That is a question properly for a jury to decide under s 23A of the Crimes Act, as Harrison J discussed in Bretherton.

28. [38]

    In my view, the fact that there have been stereotypical opinions expressed on social media about Mr Ahmed, given that he is a Bangladeshi immigrant of the Muslim faith, or of others of his background or faith, does not give rise to the conclusion that there is a real risk that he will not have a fair trial before the jury, notwithstanding that it may have to consider some distressing photographs of the injuries which he inflicted when he caused Ms Elahi’s death.

29. [39]

    Regrettably, juries all too often have to consider evidence of that kind, albeit parties nowadays properly seek to limit the tender of such material. In this case it is the defence, it appears, which may seek to rely on such evidence. That the jury may, as a result, have to consider photographs of Ms Elahi’s injuries, even when that is considered together with the other matters relied on, I am satisfied does not leave open the conclusion that the interests of justice require that Mr Ahmed not be tried before a jury.

Orders

1. [40]

   For these reasons I order that the motion be dismissed.