A Guide on the Defences to a Murder Charge

By Scott Feeney and Jimmy Singh.

It is alleged that in February 2017, 35-year-old Shahab Ahmed stabbed his wife up to 14 times after discovering that she was having an affair with their friend.

Despite admitting to the murder, Shahab “Russel” Ahmed has pleaded not guilty to the stabbing murder of his wife Khondkar Fariha Elahi of five and a half year.

The case is being tried as a judge-alone trial before Justice Monika Schmidt.

Ahmed’s plea of guilty for manslaughter was not accepted by Crown Prosecutor Sean Hughes, as his trial began on Tuesday.

“The accused’s case is that at the time … he was substantially impaired by depressive illness,” Ahmed’s barrister, Avni Djemal, said.

The Alleged Facts of the Case

On the evening of the incident the married couple had a heated argument. Ahmed demanded his wife show him her phone.

He began dragging her around their Parramatta unit, snatching her phone and finally dragging her into the bedroom. It was here he was now holding a kitchen knife and threatened to kill her.

“If you shout or scream, I’ll kill you. Give me access to your phone. I will show that you are lying. After proving that I will go away” Khan said.

Ms Elahi unlocked her phone and when Ahmed saw the length and the sexual nature of the ongoing contact with Khan, he began stabbing her repeatedly.

While being stabbed Ms Elahi was saying, “Forgive me Russel, forgive me Russel” Ahmed was also commonly known as Russel.

Ms Elahi received a total of 14 stab wounds.

Ahmed left his still breathing wife on the bed and went and smoked cigarettes for the next 10 minutes.

It is alleged that he then updated his Facebook status to say, “THE END”. Next, he changed his wife’s Facebook profile picture to one with the couple smiling together.

The Call to Triple Zero

When Khan allegedly finished updating Facebook, he made the call to Triple Zero.

The phone call allegedly went as follows:

Ahmed: Ah hi, I killed my wife

Operator: So, what happened to your wife there tonight

Ahmed: I kill her

Operator: How did you do that?

Ahmed: With knife

Ms Elahi was found with multiple stab wounds in the chest at the couple’s unit and later died in Westmead Hospital, police said.

Ahmed was charged with murder and denied bail.

The Affair

The affair Khan had with Ms Alahi

Khan admitted to having an affair with the deceased leading up to the incident.

The affair involved passionate kissing, holding hands and exchanging gifts on birthdays and St Valentine’s day.

While the affair was allegedly passionate, involving Khan admittedly to sending nude pictures of himself and receiving them from Ms Elahi, Khan denies having sexual intercourse with her.

The affair also involved sending text messages of a highly sexual nature. The pair referred to each other as hubby and wifey.

Also married, Khan, first met Ahmed in 1999. The two men and their wives developed a strong friendly relationship with each other. The two couple even holidayed overseas together in Bangladesh.

Ahmed’s boss, Irfan Ali, testified that in the days leading up to the incident, Ahmed spoke to him about his wife wanting a divorce, but said it wasn’t what he wanted.

The prosecutor Mr. Hughes said that the prosecution will be leading evidence to the effect that Ahmed made previous enquiries “about the various punishments” for infidelity according to Islam, and “he turned his mind to punishing his wife”.

Mr. Hughes is also reported saying that the combination of the pieces of evidence of posting on Facebook, smoking a cigarette prior to calling triple zero, the nature and extent of injuries, and the weapon used would be enough for the court to be satisfied that “he intended to kill”.

The Crown says his intention was to kill.

Ahmed’s barrister has argued that his client was substantially impaired by a depressive illness at the time of Ms Elahi’s death.

The prosecution allege that Ahmed turned his mind to murder in 2016 when searching the web for terms such as “how should cheating be treated”, “What is the punishment when wife cheat with husband”, “marriage advice”

A Guide on the Defences to a Murder Charge in NSW

Before a court can find you guilty of a murder charge in NSW, the prosecution is required to prove each of the following beyond reasonable doubt in court:

1. You acted voluntarily in causing the victim’s death; and
2. At such time, you:
   1. Intended to cause grievous bodily harm, which is a permanent or serious disfiguring or really serious injury; or
   2. You caused death with the intention to kill; or
   3. You foresaw the probability that your conduct will cause death yet did it anyway; or
   4. The death resulted from committing a crime where that crime carries a maximum penalty of twenty-five-years imprisonment or more. This is referred to as constructive murder.

You will be acquitted, and the murder charge will be dismissed if the prosecution fails to prove any one of the above required elements to make up the offence of murder under the law.

Any leading Sydney criminal defence law firm who specialises in murder cases will be able to pick out all the holes in the prosecution evidence to work out any weaknesses of the police case.

While we outlined the penalties for committing a murder in NSW in our last blog post, the maximum penalty a NSW Court can impose on a convicted offender for murder is imprisonment of life under section 18(1)(a) Crimes Act 1900 (NSW).

If any one of the following defences to a murder charge apply, an accused person faced with a murder charge will end up getting acquitted and the charge of murder dismissed in court:

1. The Self-Defence Argument: A person who ends up causing death to another person as a result of an act of self-defence will be found not guilty if the act that caused the death was done to protect him/herself, and if he/she responded in what the court considers to be a reasonable response in the circumstances perceived by him/her at the time.
2. The Causation Argument: A person will end up being found not guilty in court if the cause of the other person’s death was not ‘substantially’ caused by the actions of the accused person.
3. The Intention Argument: A person accused of murder will be found not guilty if the death resulted in circumstances that the accused person at the time did not reasonably foresee that as consequences of his/her actions.
4. Involuntary Actions Argument: A person accused of murder will be not guilty to this charge if his/her actions that caused the death was involuntary due to intoxication that was consumed from a drug involuntarily. This argument can be successful only if as a result of this, the person was incapable of forming an intention to kill or cause really serious harm or permanent disfiguring of the deceased person at the time. a further type of this defence is where the accused person’s actions were as a result of involuntary movements from medication, sleep walking or epileptic fit. This is known as Automatism.
5. mental health defence: Anyone facing a murder charge will be found not guilty if at the time of his/her actions which caused the other person’s death, the accused person was suffering a mental illness causing him/her to have no control of his/her actions, or where the illness caused him/her to be unaware as to the nature and quality of the actions committed, or where the illness caused the accused person to be unaware of the rightness or wrongness of his/her action.
6. The Partial Defence of Substantial Impairment by Abnormality of Mind: This defence applies under section 23A Crimes Act 1900 (NSW) if the alleged murder was committed on or subsequent to 3 April 1998.

This defence can only apply if self-defence and provocation or any other defences do not apply in favour of the person accused.

A successful partial defence of substantial impairment by abnormality of mind will result in the dismissal of the murder charge. However, it will result in a finding of guilt to the lesser serious charge of manslaughter.

The substantial impairment defence applies if the accused person can prove on the balance of probabilities each of the following elements in court:

• The accused person’s capacity was substantially impaired by an abnormality of the mind arising from an underlying condition to either understand the events, judge whether the actions were wrong or right, or control him/herself; and
• That the impairment he/she was suffering from at the time was substantial enough to warrant the murder charge to be reduced to manslaughter. This is determined by the court by applying what the court says is a value judgment from community standards.

Here, any effects from self-induced intoxication is to be disregarded.

An “underlying condition” is a mental or psychological condition that is pre-existing, which is not required to be permanent. It cannot be a passing condition or a condition that only lasts for a short time.

We are a Sydney criminal law firm with 8 offices in NSW who appear in all courts. Our team of leading criminal defence lawyers specialise in murder cases and offer a free first consultation. Call us 24/7 on (02) 8606 2218.

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