Ahmed v R

BATHURST CJ: The applicant, Shahab Ahmed (the applicant or Mr Ahmed), was convicted following a judge alone trial for the murder of his wife, Khondkar Fariha Elahi (the deceased or Ms Elahi). He was sentenced to a term of imprisonment of 27 years with a non-parole period of 20 years and 3 months.

At his trial, the applicant admitted to killing the deceased but raised the defence of substantial impairment within the meaning of s 23A of the Crimes Act 1900 (NSW). That section, so far as relevant, was in the following terms:

The trial judge rejected this defence, entered a conviction for murder and imposed the sentence to which I have referred. The applicant has appealed against his conviction on the following grounds:

The parties tendered an agreed statement of facts at the trial. Consistent with the approach taken by the trial judge (R v Ahmed (No 2) [2019] NSWSC 517 (the trial judgment) at [55]), it is convenient to set them out in full.

Prior to setting out the agreed facts, the trial judge made a number of preliminary comments. Her Honour pointed out that the applicant never denied inflicting the 14 stab wounds from which the deceased died. Her Honour also pointed out at the outset of her judgment that he not only told the operator that his wife was dead, but that he had killed her by stabbing and that an ambulance was not needed.

In the early part of her Honour’s judgment, she also referred to the interview conducted by the police in the early hours of 19 February 2017, the morning after the murder. Her Honour noted that the applicant stated that what he had done to the deceased was “very wrong and not forgivable, but in the end, contrary to his chilling description of all that he had done to her, he said that he had not intended to kill [the deceased]” (at [2] of the trial judgment). Her Honour noted that the applicant’s account included that “after he had assaulted and repeatedly stabbed Ms Elahi, he had done nothing to help her before she died”, and that there was “no issue that instead, he delayed calling 000 until after he had smoked some cigarettes; made entries on both his and Ms Elahi’s Facebook pages; and watched her, until she had stopped breathing”: at [3] of the trial judgment.

The trial judge also noted that the applicant told the police that the deceased gave him access to her phone after he had assaulted her and threatened to kill her with a knife which he had grabbed from the kitchen. Her Honour noted that the applicant said that it was only after he read recent text messages on the deceased’s phone, which confirmed an affair the deceased had had with a friend was still continuing, he lost control and stabbed her.

The trial judge then dealt with the issues between the parties. In particular, her Honour made the following comment concerning the onus of proof:

The trial judge noted (at [15] of the trial judgment) that s 23A of the Crimes Act (s 23A) required the applicant to establish on the balance of probabilities that at the time he killed the deceased:

Her Honour stated that there was no issue between the parties given the common view of the experts called by them that the applicant suffered an abnormality of mind arising from an underlying condition, namely, a chronic adjustment disorder. Her Honour noted that the experts had agreed that it was a depressive illness which had persisted for some two years before he killed the deceased and that he had developed the condition in response to the breakdown of his marriage. Her Honour also stated that the experts agreed the severity had fluctuated over that time.

The trial judge also stated that she was satisfied that when the applicant killed the deceased he did suffer such an abnormality of mind. Her Honour stated however, that the experts disagreed on the second question posed by s 23A, namely, whether the abnormality substantially impaired the applicant’s capacity to control himself. Her Honour stated that that issue must be resolved on all the evidence, “bearing in mind that in s 23A ‘substantial’ and ‘impaired’ have their normal meaning” (at [26] of the trial judgment).

The trial judge stated that the third question involved a value judgment which required community standards to be applied. Her Honour stated (at [30] of the trial judgment) that she was obliged to apply the standards which she regarded as current in the community, in determining whether the applicant had established that his impairment was so substantial that his liability to punishment should be reduced from that which would follow from a conviction for murder, to that which would follow from a conviction for manslaughter.

The trial judge then set out other principles of law which she stated that she was bound to apply. Of importance, these included the following (at [34] of the trial judgment):

Thereafter in a section of her Honour’s judgment entitled “Findings on the agreed facts”, the trial judge stated (at [36] of the trial judgment) that one difficulty in determining whether the defence was established was that it was necessary to make findings of fact in circumstances where the parties not only agreed on many of the facts, but where what they agreed upon departed in relevant respects from some parts of the earlier accounts which the applicant had given as to how he came to kill the deceased. Her Honour noted that the expert psychiatrists who gave evidence, namely, Dr Olav Nielssen on behalf of the applicant and Dr Adam Martin on behalf of the Crown, considered three of those accounts. Her Honour stated that the agreed facts in large part reflected the accounts which the applicant gave on the night he killed the deceased, but did not adopt aspects of what he later told Dr Nielssen and Dr Martin and upon which they arrived at their opinions. Her Honour stated (at [39] of the trial judgment) that it was “difficult to see how some aspects of the agreed facts and his earlier accounts can be reconciled”. Her Honour then made the following comments (at [40] of the trial judgment):

Her Honour then stated (at [43] of the trial judgment) that, having considered the agreed facts as well as the applicant’s various accounts, but for the agreement about the facts, she would not have been able to come to important findings which supported the partial defence which was advanced, stating that that was because she was satisfied that those accounts were not entirely reliable. Her Honour stated (at [44] of the trial judgment) that on the applicant’s accounts alone she would not have found that he repeatedly stabbed the deceased in one episode of a murderous rage, only after she had given him access to her phone and he had read the text messages which she had recently exchanged with Mr Khan, confirming his suspicions that her relationship with Mr Khan continued.

In that context, her Honour stated (at [48] of the trial judgment) that although the applicant’s account that he only stabbed the deceased after he read the text messages was consistently given, this sequence of events “seemed quite improbable, given what he otherwise described having done to [the deceased] and what the objective evidence established”. Her Honour stated (at [49] of the trial judgment) that the objective evidence included that the deceased’s phone could only be activated by the use of her thumb; that stored in the phone were very recent text messages which not only confirmed that she had continued her relationship with Mr Khan, but which also revealed the intimate nature of that relationship; and that as well as the stab wounds the applicant inflicted to many parts of the deceased’s body which caused the injuries from which she died, the applicant had also inflicted many other injuries.

It seems that the trial judge based these remarks on this issue on the fact that she regarded all the other evidence as establishing that it was unlikely that the deceased gave the applicant access to her phone, “despite the fury he described feeling, the threat he said he had made at knifepoint to kill her and his assaults, given what she knew he would find there” (at [51] of the trial judgment). Her Honour stated (at [51] of the trial judgment) that “[l]ogically they were rather likely to heighten Ms Elahi’s efforts at resistance, consistent with the other injuries she suffered”. Her Honour stated (at [51] of the trial judgment) that the hypothesis that the applicant used the deceased’s thumb to access her phone when she was no longer capable of resisting him was “clearly possible, on all of the evidence”. Her Honour stated in those circumstances, she did not accept that the applicant’s accounts were either entirely accurate or reliable, although she accepted that she was bound by the agreed facts (at [51]-[54] of the trial judgment).

Thereafter, the trial judge recorded the agreed facts.

I have dealt with the opening part of her Honour’s judgment in some detail because it provides the context of the complaint made in ground 1 of the grounds of appeal, namely, a failure to adequately direct herself as to the applicant’s failure to give evidence.

After citing the agreed facts, the trial judge turned to deal with the experts’ opinions. Her Honour first dealt with the evidence of Dr Nielssen. Her Honour noted (at [58] of the trial judgment) that Dr Nielssen expressed the view that the applicant would be able to raise a s 23A defence, explaining his conclusion in the following manner:

Her Honour stated (at [59] of the trial judgment) that Dr Nielssen’s conclusions rested on an understanding of the relevant facts which was not consistent with the agreed facts, or supported by other evidence, including the applicant’s earlier accounts.

Her Honour then referred to the evidence of Dr Martin, noting (at [61] of the trial judgment) that he expressed the following views:

The trial judge then noted (at [62] of the trial judgment) that in a joint report ordered by her, both the experts agreed that when the applicant killed the deceased he was “affected by a chronic adjustment disorder, that being a clinically significant response to an adverse life event, the breakdown of his marriage, manifesting with the syndrome of depression”. Her Honour also noted (at [65] of the trial judgment) that the report recorded that “Dr Nielssen took the view that the abnormality of mind arising from the acute exacerbation of Mr Ahmed’s chronic depressive illness was significant, and resulted in significant impairment in the domains of mental function set out in section 23A of the Crimes Act”. Her Honour noted (also at [65] of the trial judgment) that the report recorded that “Dr Martin took the position that Mr Ahmed had not been grossly impaired in level of function in the weeks leading up to the alleged offending” and “that while being depressed would make a person more prone to over-reacting and could impact on a person’s ability to control their behaviour, … that the ultimate issue of whether Mr Ahmed was substantially impaired by chronic adjustment disorder to the point that murder should be reduced to manslaughter was a matter for the court”.

Her Honour noted (at [66] of the trial judgment) that after the joint report the experts considered the evidence that whilst in Bangladesh, before his return to Australia in 2017, the applicant had “conducted internet searches about punishment for adultery”.

The trial judge then dealt with the evidence of other witnesses. Her Honour referred first to the evidence of Detective Sergeant Fenwick and concluded that that established that in 2015, the applicant saw Dr Ngo about his depression in May 2015 in the company of the deceased’s father, but he pursued no treatment. Her Honour stated that consistent with this history, the evidence of the applicant’s work colleague and his manager was that prior to 2016, the applicant was not affected by depressive symptoms. Her Honour noted (at [109] of the trial judgment) that their evidence was that prior to 2016 he had a work history of “always being punctual, polite, cheerful and responsible”.

Her Honour then dealt with evidence of, among others, the applicant’s manager, Mr Khan, with whom the deceased was pursuing a relationship, Mr Khan’s wife, and a person described in the judgment as “Mr Ahmed’s friend”. These individuals gave varying accounts of his mental state from time to time over the period 2015 to 2017. Because of the view I have taken on ground 1, it is unnecessary to set out this evidence or her Honour’s summary of it in any detail.

The trial judge noted that the applicant went to Bangladesh in November 2016. Her Honour noted that prior to that time the evidence also established that the deceased was in a relationship with Mr Khan and that the applicant was aware of this by September 2016. Her Honour noted (at [157]-[158] of the trial judgment) that whilst in Bangladesh, the applicant wrote to the deceased stating that “he always thought that things would get better” and that “if they were together and worked hard on their relationship, which he was ready to do, gradually they could help each other ‘to improve’”. Her Honour noted that the applicant also urged the deceased “not to make her decision [to divorce] before she had rethought everything and that he would not give up hope” (at [158] of the trial judgment).

The trial judge also referred to Facebook messages which the applicant and the deceased exchanged whilst the applicant was in Bangladesh. Her Honour stated (at [159] of the trial judgment) that contrary to what the applicant later told Dr Nielssen, “what Ms Elahi said in those messages, cannot have given him hope on his return that she had altered her mind about their relationship continuing”. Her Honour also stated (at [160] of the trial judgment) that to the contrary, in a long series of exchanges on 12 February 2017, the deceased told the applicant, “nothing has changed”; “I am in my position that I was three months ago”; “I have nothing to offer you”; and “I do not think we have a future together”. Her Honour noted that the person she described as “Mr Ahmed’s friend”, Mr Arijit Barua, said that on 15 February 2017 he had sent the applicant a text asking him what the deceased’s decision was and the response was “divorce” (at [133] of the trial judgment). The trial judge also noted Mr Barua’s evidence that on the morning of 17 February he spoke to the applicant for about 18 minutes. His evidence was that the applicant sounded quite normal and said (quoted at [133] of the trial judgment):

After dealing with this evidence, the trial judge stated that she was not able to accept that the accounts the applicant gave to the experts in 2018 were entirely accurate or reliable, given the differences between these accounts compared with his earlier accounts and the other evidence. Her Honour referred first to the 000 call, which she recorded began with the applicant calmly telling the operator he had killed his wife and asking for the police to be sent and that an ambulance was not needed. Her Honour noted (at [165] of the trial judgment) that contrary to his later accounts, the applicant told the operator that “this” had happened only a couple of minutes ago. Her Honour also noted that he stated in the 000 call that the deceased was not breathing, that she had had an affair with one of his friends long ago, that she had said it was not happening anymore, and that he had checked her phone.

Her Honour then noted (at [167] of the trial judgment) that on arrest, the applicant “calmly” told police that he and the deceased had argued, that she had had an affair with one of his friends two years ago, and that he had asked and she said that it was over long ago. The trial judge stated that contrary to his later accounts and the other evidence, the applicant said that it was when he had come back that the deceased said that maybe they did not have a future together. Her Honour noted (at [170] of the trial judgment) that contrary to his later accounts and what was established on autopsy, the applicant said that he had used the knife only a “couple of times”.

The trial judge made similar remarks in connection with the police interview, noting (at [179] of the trial judgment) that there was simply nothing in that account or the other evidence which provided a basis “for Mr Ahmed having had an expectation that when he returned to Australia, that Ms Elahi would share his desire to make the marriage work”. Her Honour noted that on this account, the applicant returned to Australia in a positive frame of mind, despite he and the deceased having argued in January over him posting a photo of them together on his Facebook page.

The trial judge then dealt with the account recorded by Dr Nielssen, stating (at [184] of the trial judgment) that what he recorded in his report reflected an account that was “by then so different in relevant respects from those which he had given on that night, that its veracity is questionable”. Once again, having regard to the view I have taken in relation to ground 1, it is unnecessary to set out the differences in detail, but it should be noted that her Honour recorded (at [184](12) of the trial judgment) that “[q]uite inconsistently with his account to police that he believed she was dead before he called 000”, the applicant told Dr Nielssen that when he came back from the room where he went to smoke, the deceased said “‘I am actually dying’. He then grabbed her in his arms and accessed her phone with her finger and rang 000 and asked ‘can you send someone’”.

The trial judge stated that the statement made by the applicant to Dr Nielssen that he had hope (for the marriage) on his return to Australia could not be accepted. Her Honour referred to his pursuit of internet searches about punishment for adulterous husbands and wives, stating (at [190] of the trial judgment) that whilst the applicant “may not have planned to punish Ms Elahi when he returned to Australia to pursue his aim of keeping her, despite knowing that she was intent on divorce, the notion of punishment for adultery was something which he had not only considered before he killed her, but actively investigated”.

The trial judge conducted a similar analysis of the account given to Dr Martin, compared to the applicant’s earlier account. It is unnecessary to set it out in detail.

The trial judge then reached the following conclusions (at [235]-[237] of the trial judgment):

The trial judge rejected Dr Nielssen’s opinion and expressed her conclusions in the following form (at [242]-[247] of the trial judgment):

Finally, the trial judge stated (at [254] of the trial judgment) that even if she had come to the conclusion that at the time of the killing, the applicant was suffering from an abnormality of mind substantially impairing his capacity to control himself, she would have been “unable to conclude that the community’s current standards would permit the result that Mr Ahmed be sentenced for manslaughter, rather than for Ms Elahi’s murder”.

As the trial was a trial by judge alone, the provisions of s 133 of the Criminal Procedure Act 1986 (NSW) were applicable. Section 133 provides as follows:

Section 133(2) required the trial judge to include the principles of law applied by her. This includes a requirement for the trial judge to give herself the same direction as would be given to a jury. Section 133(3) required the trial judge to take into account any warning which would have been required to be given to a jury.

The relevant requirements and the effect of non-compliance with them were set out by the High Court in Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 (“Fleming”). In dealing with the predecessors to s 133(2) and s 133(3), the former s 33(2) and s 33(3) of the Criminal Procedure Act, the Court made the following remarks:

The principles were restated in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 in the following terms:

In the present case the applicant contends that the trial judge failed to direct herself to the effect that no adverse inference could be drawn from the failure by him to give evidence, or failed expressly or impliedly to have regard to that warning in delivering her judgment.

The requirement to give a warning of that nature has been referred to in a number of cases. In Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25 (“Azzopardi”), the plurality stated the principle as follows (at [51]):

Such a warning is of particular importance in a case such as the present where the onus lay on the accused to establish the defence. In such a case it seems to be essential to warn against a path of reasoning that the failure to give evidence was a relevant factor in considering whether the onus had been discharged.

The Crown submitted that there was no failure to give a mandatory direction. She submitted that the right to silence direction given by the trial judge carried with it by necessary implication a warning against drawing an inference unfavourable to the applicant from his failure to give evidence. In her written submissions, the Crown submitted that the comments upon which the complaint was based occurred early in the judgment and there was no suggestion in the judgment that any adverse inference was drawn from the applicant’s failure to give evidence.

At the hearing, the Crown submitted that a warning against drawing an adverse inference from an accused’s failure to give evidence was not required in every case. She submitted that the cases where it was required were cases where there was evidence that the accused could have contradicted but did not do so. She submitted that the directions given were adequate and that the judge was entitled to say that the applicant’s untested court statements should be treated with caution.

Notwithstanding these submissions, I do not think the trial judge complied with the requirement in Fleming and there was thus an error within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW). Accepting that the warning against drawing an adverse inference from the accused’s silence is not a mandatory direction, as was pointed out in Azzopardi in the passage to which I have referred, it is one which is required in most cases. As I have also pointed out, it is of particular importance in the case such as the present where the onus of proof on the central issue between the parties lay on the accused.

No such warning was expressly given. Whether it could be implied from the right to silence direction depends on the context in which that direction was given.

In [11] of her Honour’s judgment, which I have set out at [8] above, the trial judge stated that the applicant had “elected not to give evidence, despite the onus which fell upon him”. That involves a type of reasoning that a warning against drawing an adverse inference from the accused’s silence is designed to prevent.

It is in that context that the right to silence direction needs to be considered. As I indicated, it does not contain an express warning against drawing an adverse inference. Further, immediately after it, under the heading “Assessment of Mr Ahmed’s various accounts”, the trial judge again noted (at [34](17) of the trial judgment) the accounts given by the applicant had “not been tested in cross-examination”.

It must also be noted that her Honour again referred to the fact that the applicant’s accounts were untested, although stating that it was “his right not to give evidence” (at [40] of the trial judgment, see at [14] above), and indeed she stated that she had some doubt about the reliability of the agreed facts (see at [16]-[17] above).

Thereafter, importantly, her Honour rejected the truth of the applicant’s assertions to Dr Nielssen that he had hope of continuing his marriage on his return overseas, again emphasising the divergence in the various accounts given by him (see at [26]-[35] above). Whilst this was a perfectly acceptable course of reasoning, it is another area where it was important to emphasise that no adverse inference could be drawn from the applicant’s failure to give evidence.

In these circumstances, I do not think that it can be implied that the trial judge warned herself of the need to guard against drawing adverse inferences from the failure of the applicant to give evidence.

This ground of appeal has been made out.

In considering whether it is appropriate to deal with this ground, it is important to bear in mind the matters that the applicant was required to establish to make good the defence. The trial judge conveniently set these out in her judgment (see at [9] above).

Her Honour was satisfied that the applicant suffered an abnormality of mind arising from an underlying condition. This was consistent with the evidence of Dr Nielssen and Dr Martin and was not a matter of controversy in the appeal.

Her Honour having rejected the evidence of Dr Nielssen, found it was not established that the abnormality substantially impacted the applicant’s capacity to control himself. It was this conclusion to which this ground of appeal is directed.

However, her Honour also found that irrespective of whether she was correct on the second issue, she would have concluded that it was not established that the impact was so substantial as would warrant the applicant’s liability for murder being reduced to manslaughter (see at [37] above).

In reaching this conclusion, her Honour stated that the question involved a value judgment which required community standards to be applied. This approach, with respect, was correct. It is well established that expert evidence has no role to play in this assessment: R v Byrne [1960] 2 QB 396 at 404; R v Trotter (1993) 35 NSWLR 428 at 431; Quinn v R [2018] NSWCCA 297 at [49]-[50]; Tarrant v R [2018] NSWCCA 21 at [79]-[80]. This is made clear by s 23A(2) of the Crimes Act.

Thus, even if the Court concluded that in dealing with the second issue the trial judge unreasonably rejected the evidence of Dr Nielssen, it would be necessary for the verdict to be set aside to conclude that the finding of the trial judge on the third issue was unreasonable. No submissions were directed to this question.

Faced with this difficulty, the applicant contended that if this ground of appeal was made out there should be a new trial in which the new judge (or a jury) could assess the third issue in the context of a correct finding on the second issue.

Whether this would be an appropriate course had this ground been made out but not ground 1, need not be determined. In light of the fact that, as a result of the applicant’s success on ground 1, there will need to be a new trial, it is inappropriate for the Court to deal with what will be a critical factual matter in that trial.

In the result I would make the following orders:

GARLING J and WRIGHT J: We agree with the orders proposed by the Chief Justice. We wish to add these reasons with respect to Ground 1.

The applicant pleaded not guilty to murder but guilty to manslaughter. It was accepted by counsel for the applicant at the trial, in his opening statement to the trial Judge (“the Judge”), that the applicant was responsible both legally and morally for the death of his wife. The applicant’s counsel told the Judge that the sole issue was whether the applicant had made out the partial defence of substantial impairment as contained in s 23A of the Crimes Act 1900 (NSW) (“the defence”).

It was conceded by the Crown that, on the evidence, the applicant had an abnormality of mind arising from an underlying condition. This was the first of three matters which the applicant was required to prove in order to make out the defence.

The other two matters in issue were whether, at the time the applicant killed his wife, his capacity to control himself was “substantially impaired” by that abnormality of mind, and whether the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

The onus of proving the defence falls on an accused on the balance of probabilities: s 23A(4) of the Crimes Act.

During the trial, the Judge was confronted with a mixture of facts derived from a range of sources which were relied upon by the applicant to make out the defence.

In deciding whether the applicant had discharged his onus, the Judge had to consider the range of facts which did not all point in the same direction and consider what weight ought to be attributed to various parts of the evidence.

The applicant had given an account of what had occurred when he made a call to the Emergency 000 number. His account to the operator was recorded and that call was tendered in evidence.

After the emergency call was received, the police attended at the applicant’s home. One of the police who attended was Detective Senior Constable Starr. He interviewed the applicant about what had happened and recorded that interview on a voice file. This interview and a transcript were tendered.

After the applicant had been arrested and taken to the Parramatta Police Station, he took part in an electronically recorded interview with investigating police which lasted approximately 2 hours and 41 minutes. The transcript of 67 pages of that interview was tendered, as was the video recording of it.

There was also evidence about the applicant’s account of what had occurred from two psychiatric experts – Dr Olav Nielssen and Dr Adam Martin. Both psychiatrists had interviewed the applicant for the purpose of preparing an expert report to be tendered in the proceedings. The applicant had given each of those experts an account of his background, his medical and psychiatric history, the events leading up to the killing of his wife and, speaking generally, the events surrounding that killing.

Her Honour accepted a submission made by the applicant’s counsel that, in accordance with the decision of this Court in R v Welsh (1996) 90 A Crim R 364, the effect of s 60 of the Evidence Act 1995 (NSW) was that once admitted as a history given by the applicant to each of the expert psychiatrists, those histories were evidence of the truth of the contents of them. The source of these facts, namely the evidence of the expert psychiatrists, meant that the evidence was hearsay which may have called for the Judge to have given herself a warning under s 165(1)(a) of the Evidence Act.

Her Honour’s task was made more complex by the fact that two documents recording extensive Agreed Facts were tendered as exhibits pursuant to s 191 of the Evidence Act. In considering these facts, it was necessary for the Judge to keep in mind the terms of s 191(2)(b) of the Evidence Act which provides that without the leave of the Court “evidence may not be adduced to contradict or qualify an agreed fact”. At no time was the Court’s leave sought pursuant to s 191(2)(b). Furthermore, evidence is not required to prove the existence of an agreed fact: s 191(2)(a); and, an agreed fact is one which is not to be disputed by the parties to the trial: s 191(1). These provisions were not specifically drawn to her Honour’s attention.

The applicant did not give evidence in his case at trial.

The transcript of the proceedings shows that the Judge was concerned, unsurprisingly, as to how she might correctly reason towards findings of fact in circumstances where the factual evidence contained in the sources which we have enumerated above, was not always consistent and sometimes contradictory.

At the commencement of the Crown’s address at the conclusion of the evidence, her Honour raised with the Crown prosecutor this issue and sought his assistance by way of submissions. What her Honour said was:

Her Honour sought the Crown’s assistance by way of submission during the course of their address. The Crown did not return to those issues which her Honour had directly raised, although its submissions did deal with the question of which version of the facts was to be preferred by reference to other facts and circumstances. The Crown did not draw her Honour’s attention to any legal principle, or direction of law, which her Honour was required to give herself in the circumstances with which she was confronted.

Counsel for the applicant made submissions to her Honour about the weight to be given to the hearsay evidence of the two expert psychiatrists in respect of what it was that the applicant had told them. He submitted that her Honour would not find that such hearsay evidence fell into the category of being generally unreliable and so worthy of a s 165 warning. Counsel referred her Honour to some obiter remarks of Hunt AJA in R v Wilson [2005] NSWCCA 20; (2005) 62 NSWLR 346 at [36]‑[38] which dealt with the application of such a warning.

The applicant’s counsel submitted that her Honour would look at the evidence overall and come to a conclusion as to its reliability without having regard to the general proposition that hearsay evidence would ordinarily be unreliable.

Counsel for the applicant did not draw to the Judge’s attention specifically any direction which would have been appropriate for her to give herself with respect to the fact that the applicant had not given evidence, nor how that fact was, as a matter of law, to be treated by her in weighing up the conflicting evidence.

In particular, neither counsel drew the Court’s attention to the authorities discussed by the Chief Justice at [40] and [43] above.

The principle to be derived from Azzopardi is set out by the Chief Justice at [43] above. The majority in Azzopardi noted at [34] that the fundamental proposition from which the statement of principle derives is that a criminal trial is an accusatorial process in which the prosecution bears the onus of proving the guilt of an accused beyond reasonable doubt. The majority then said:

The majority also said that there could be no expectation that an accused would give evidence at trial. They drew attention to the radical differences between a criminal trial and a civil proceeding. In so doing, they drew attention to what was said in RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at 632 [26] about the drawing of an inference in a civil trial:

A reference to the judgment of Windeyer J at [321] in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 was added at the end of that quotation in RPS.

The issue in this trial was not entirely the same as that discussed in Azzopardi. It was more nuanced. That was because the issue the Judge was considering here was not whether the prosecution had discharged its onus in proving the guilt of the applicant beyond reasonable doubt but, rather, whether the applicant had persuaded the Judge on the balance of probabilities that he had made out the defence.

But there are real similarities with the underlying formulation adopted in Azzopardi. First, the defence arises only in the context of, and as a part of, a single undivided adversarial criminal trial where the accused is not expected to give evidence and cannot be criticised for not doing so. Secondly, evidence led by the prosecution in proof of its case will almost always be relevant to, and relied upon by, an accused in proof of the defence. Thirdly, there is no mechanism in a criminal trial which would permit an accused to give evidence in support of a defence, without being open to cross-examination by the prosecution to assist it in the proof of its own case. Finally, although the onus of proof falls on an accused with respect to the defence, neither the statute providing for the defence nor any other common law principle, requires an accused to give evidence in order that the onus which falls upon them can be discharged.

In light of this, it follows that the fact that an accused does not give evidence in support of the defence, cannot, without more, give rise to a Jones v Dunkel inference being drawn or any other reasoning processes which adversely impacts, or which may adversely impact, on the discharge of the onus of proof.

One of the matters raised by the Judge when seeking assistance from the parties was, in substance, whether in considering the weight to be given to the accounts of the events narrated by the applicant to the expert psychiatrists, she was entitled to have regard to the fact that those accounts had not been attested by the applicant in evidence at trial, nor had they been subjected to being tested in cross-examination.

No authority was drawn to her Honour’s attention dealing with that issue. No authority has been drawn to our attention on the hearing of this application which suggests the answer to this question.

Historically, at a time when an accused was able to make an unsworn statement, a trial Judge was permitted to inform the jury about the nature of the statement – namely, that it was unsworn and that it was not the subject of any cross-examination. The jury were instructed, however, that they should have regard to the unsworn statement of an accused as constituting a possible version of the facts, and that they were to accord it “… such weight as it appears entitled to in comparison with the facts clearly established by evidence.”: Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 640-641 per Griffiths CJ, and at 646-650 per Barton J (O’Connor J agreeing).

Such a direction was regarded as an appropriate one because it provided guidance to a jury as to the nature of an unsworn statement and the weight which could be accorded to it. It was not seen to be an adverse criticism of the accused by reason of the fact that the accused had not entered the witness box and given sworn evidence, but rather had chosen to make an unsworn statement.

However, as earlier remarked, the present state of authority does not deal with whether a similar approach would be appropriate to be followed in, at least, a judge alone trial where a real issue exists about the weight to be given to accounts given by an accused prior to a trial commencing, in circumstances where an accused does not give evidence.

Whilst for our part, we see the good sense in a direction being given of a kind adapted from the approved approach in Peacock, since this was not a matter which was fully argued, we prefer to reserve our final determination of such an important issue until full argument is provided.

However, what is clear from this consideration is that the failure of the applicant to give evidence at his trial was not a matter which could be taken into account in any way which was adverse to him. Because of the complexity of the evidentiary issues and the risk of that occurring in the particular circumstances of this case, a clear and explicit direction which accorded with that formulated in Azzopardi was required to be given by the Judge so as to avoid falling into an error of law of the kind discussed in Fleming.

It is a matter of regret that counsel did not seek such an explicit direction from the Judge. However, the absence of such a direction amounts to an error of law with the result that the appeal must be upheld.

For these reasons, we agree with the orders proposed by the Chief Justice.