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R v Ahmed

R v Ahmed

Case [2019] NSWSC 55 8 February 2019

Notice of Motion

Criminal Liability

Partial Defence

Diminished Responsibility

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Supreme Court

New South Wales

Case Name:	R v Ahmed
Medium Neutral Citation:	[2019] NSWSC 55
Hearing Date(s):	7 February 2019
Date of Orders:	08 February 2019
Decision Date:	8 February 2019
Before:	Schmidt J
Decision:	Motion dismissed.
Catchwords:	CRIMINAL LAW – notice of motion – s 132 Criminal Procedure Act 1986 (NSW) – application for trial by judge alone – charge of murder – domestic violence offence – single issue at trial whether partial defence of diminished responsibility by reason of substantial impairment by abnormality of mind available under s 23A Crimes Act 1900 (NSW) – application of community standards – whether in the interests of justice to make order – whether accused will have a fair trial – risk of prejudice from adverse media and social media commentary about applicant’s racial background and faith – risk that jurors will not adhere to directions – application dismissed
Legislation Cited:	Crimes Act 1900 (NSW)Criminal Procedure Act 1986 (NSW)
Cases Cited:	Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330R v Belghar [2012] NSWCCA 86R v Bretherton [2013] NSWSC 1036R v Haydar [2017] NSWSC 127R v Haydar (No 2) 2017 NSWSC 131R v Villalon [2013] NSWSC 1516
Category:	Procedural and other rulings
Parties:	Regina (Crown) Shahab Ahmed (Accused)
Representation:	Counsel: S Hughes (Crown) A Djemal (Accused) Solicitors: Solicitor for Public Prosecutions NSW (Crown) Oxford Lawyers (Accused)
File Number(s):	2017/52488
Publication Restriction:	Nil

Judgment

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 Act1986 (NSW), for trial by judge alone. The Crown opposes his application.
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.
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:
“(5) Without limiting subsection (4), the court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness.”
Whether it is in the interests of justice for Mr…

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 [2019] NSWSC 55
Case: [2019] NSWSC 55
Decision Date: 8 February 2019

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the case of R v Ahmed involved the defendant, who was charged with murder. The case presented a complex issue regarding the partial defence of diminished responsibility by reason of substantial impairment by abnormality of mind. The defendant applied for a trial by judge alone, asserting that the intense media and social media coverage of the case, particularly concerning the defendant's racial background and faith, posed a significant risk of prejudice and potential juror bias. The court was tasked with determining whether the application for a judge-only trial was in the interests of justice, considering the risk of prejudice and the likelihood of jurors adhering to directions.

The primary legal issue the court had to decide was whether the application for a judge-only trial under section 132 of the Criminal Procedure Act 1986 (NSW) was appropriate given the circumstances. The court had to consider the potential prejudice from adverse media and social media commentary, as well as the risk that jurors might not adhere to directions despite the court's instructions. Additionally, the court needed to assess whether the defendant would receive a fair trial if the case proceeded with a jury.

The court meticulously evaluated the arguments presented and considered the relevant legal principles. It concluded that, while the media coverage was indeed prejudicial, it did not reach the threshold of such severity that it would irremediably affect the fairness of the trial. The court emphasised the importance of the presumption of innocence and the capacity of jurors to follow the court's directions. Ultimately, the court determined that the application for a judge-only trial was not in the interests of justice. The court dismissed the application, thereby allowing the trial to proceed with a jury.

The final orders of the court were that the application for a judge-only trial was dismissed. The trial proceeded with a jury, ensuring that the defendant's rights were upheld while also considering the community's interest in the fair administration of justice.

Orders