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R v Ahmed

R v Ahmed

Case [2022] NSWSC 1268 20 September 2022

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Supreme Court

New South Wales

Medium Neutral Citation: R v Ahmed [2022] NSWSC 1268
Hearing dates: 20 September 2022
Date of orders: 20 September 2022
Decision date: 20 September 2022
Jurisdiction: Common Law
Before: N Adams J
Decision:
The application under s 132(1) of the Criminal Procedure Act 1986 (NSW) for a trial by judge alone is refused.

Catchwords:
CRIMINAL PROCEDURE – trial – judge alone application – whether in interests of justice – murder – substantial impairment – “application of objective community standards” – domestic violence – Muslim couple – prior conviction and publicity – interests of justice require a jury trial – application refused

Legislation Cited:
Crimes Act 1900 (NSW), s 23A
Criminal Appeal Act, s 5F
Criminal Procedure Act 1986 (NSW), ss 131, 132, 132A
Jury Act1977 (NSW)

Cases Cited:
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 GokhanEyuboglu [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

Category: Procedural rulings
Parties: Rex (Crown)
Shahab Uddin Ahmed (Accused)
Representation:
Counsel:
Ms F Gray (Crown)
Mr M Rammage KC (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Olympus Law Partners (Accused)

File Number(s): 2017/52488
Publication restriction: Nil.

Judgment

By notice of motion dated 14 September 2002 the accused, Shahab Uddin Ahmed, makes application under s 132(1) of the Criminal Procedure Act1986 (NSW) that he be tried by judge alone.
On 18 February 2017, the accused killed his wife, Khondkar Fariha Elahir, by stabbing her multiple times in their home. He was arrested and charged with her murder that same day.
The accused admits that he killed his wife. He is willing to plead guilty to manslaughter based on the partial defence of substantial impairment as provided for in s 23A of the Crimes Act1900 (NSW). The Crown does not accept this plea in full satisfaction of the indictment.
The accused stood trial for murder before Schmidt J on 15 April 2019. Her Honour had earlier refused an application that the trial be by way of judge alone: R v Ahmed [2019] NSWSC 55. Regrettably, within days of the trial being due to start the Crown served a large volume of documents, including internet searches the accused had conducted about punishing adulterous wives. In addition, no jury panel was available on the day that the trial was due to start. Instead of an adjournment being sought to consider the new material, the Crown changed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ahmed

Details

AGLC: R v Ahmed [2022] NSWSC 1268
Case: [2022] NSWSC 1268
Decision Date: 20 September 2022

CaseChat Overview and Summary

The case before the court involved a defendant, Ahmed, who had been charged with the murder of his spouse. The matter was heard by a single judge in the Supreme Court of the state, with the defendant seeking a trial by jury. The key issue before the court was whether a jury trial was required in the interests of justice given the circumstances of the case. This included considering the impact of the defendant's prior criminal history, the nature of the allegations involving domestic violence, and the level of publicity the case had already attracted.

The court examined the principles set out in relevant case law and statutes, particularly focusing on the objective standard of community expectations regarding the trial of serious criminal offences. The court found that while the circumstances of the case were grave and the defendant's prior history was relevant, the significant community interest in the case and the potential for prejudice did not necessitate a jury trial. The court was of the view that a judge alone was capable of fairly assessing the evidence and applying the law without being swayed by extraneous factors.

In light of the court's reasoning, the application for a jury trial was dismissed. The case would proceed before a single judge, who would be responsible for determining the defendant's guilt or innocence based on the evidence presented. The court's decision was grounded in the belief that the interests of justice could be adequately served by a judge alone, notwithstanding the serious nature of the charges and the background of the defendant.

Orders