In R. v. Belghar (New South Wales Ct. Crim. App. Apr. 11, 2012), Ismail Belghar is being prosecuted for attempted murder of his sister-in-law (labeled “complainant” in the opinion). The government alleges:
On a day in October 2009, the complainant, her sister Hanife and a female friend went to the beach without the respondent’s knowledge. When Hanife returned home, the respondent demanded to know where she had been and whom she had been with. When she told him, the respondent telephoned the complainant and said, “You slut, I’m going to kill you. I’m going to fuck you up. I’m going to find you and kill you. You fucking slut, how dare you take my wife to the beach.”
[Two months later, Belghar ran into complainant at a shopping mall.] The respondent walked out of the shopping centre and towards the complainant with a key in his right hand. He stood in front of her and put his face against hers and said, “I’m going to kill you. I’m going to fucking kill you.” The respondent slapped the complainant once with an open right hand to the left side of her face. The respondent then bent down, put his arms around the complainant’s legs and waist and picked her up from the railing. He carried her to the railing on the boundary of the car park (“the external railing”) and held her over it to the extent that she could see the roadway below. The complainant was crying uncontrollably and believed she was going to die.
Complainant’s brother interceded and saved her. Belghar was arraigned for trial, and asked for a trial without a jury, but the government insisted on a jury. Under Australia law, when a defendant waives trial by jury and a prosecutor disagrees, “the court may make a trial by judge order if it considers it is in the interests of justice to do so”; and the trial judge reasoned (emphasis added),
[T]he attitude of the [respondent] regarding the sister-in-law victim is based on a religious or cultural basis and in light of the fact that there has been adverse publicity regarding persons who hold extreme Muslim faith beliefs in the community, I am of the view that the apprehension by the [respondent] that he may not receive a fair trial is a reasonable apprehension….
The reason for the animosity between the applicant and the victim as suggested by the Crown will be that the victim took the applicant’s wife to the beach where the applicant’s wife displayed her body because she was seen by the applicant to be sunburnt in her certain places on her body and this was abhorrent to the applicant by virtue of either his strict religious beliefs or by virtue of the fact that he believed he had absolute authority over the wife as opposed to the wife’s family having some authority over her….
In this particular case there is direct reference to aspects of the Muslim faith which may cause a jury to take their mind off the central issue which is a single issue, that is, what was the intent of the applicant at the point in time that he came into contact with the victim at the Broadway shopping centre….
In this particular case it really relates insofar as the Crown case is concerned as to his state of mind, and the rage created by his either faith (sic) or the culture that he had absolute control over the wife….
I feel that the application should be granted … and I do so on the basis that the Crown has not been able to demonstrate to me any prejudice that the Crown faces or any prejudice that the community faces in relation to the granting of the application.
The appeals court disagreed (emphasis added) (some paragraph breaks added):
[T]he decision that the [trial] judge is required to make [about whether to order a trial without a jury] must be founded upon evidence. That evidence may disclose that, notwithstanding that the accused has a concern that he or she may not receive a fair trial, the concern is misplaced. There are conceivably many people in the community who have particular allegiances or who are members of a minority group and who believe that other members of the community would be prejudiced against them. However, whether those fears should be accepted as having the potential to corrupt the fairness of an accused’s trial if tried by a jury must be evaluated having regard to all of the relevant circumstances. Those circumstances will include an assessment of whether the accused’s apprehension is soundly based.
The granting of an application on the mere apprehension of prejudice in prospective jurors, not based on evidence or a matter of which the court may take judicial notice, is at odds with the assumption which the common law makes that jurors will understand and obey the instructions of trial judges to bring an impartial mind to bear on their verdict[.] The fact that an accused person desires a trial by judge alone, although relevant, is not as significant as the reasons for that preference and whether those reasons are rationally justified and bear upon whether he or she will receive a fair trial….
It may be accepted that from time to time adverse publicity is given to events which have occurred, generally outside Australia, where the strict application of a form of Muslim law or Islamic tradition has given rise to the treatment of a woman or women in a manner which is generally unacceptable to ordinary Australians. It may also be that some people in the Australian community harbour prejudice against persons who adhere to the Muslim faith, particularly against those holding “conservative” views about the place and role of women in marriage or in wider society.
However, without evidence that such views are widespread in the Australian community and would be likely to influence jurors, it must be assumed that the protection afforded an accused person in the ordinary course of a trial will protect him or her from an unjust result. Those protections include the practice that before jurors are selected, each member of the panel will be reminded of their obligation to bring an impartial mind to the decision, and after being informed of the alleged offence, the identity of the accused, and the nature of the issues in the trial, asked to consider whether they can fairly consider the relevant issues.
In the present case the jury would be told that the accused is a Muslim and that an issue in the trial is whether his actions in respect of his wife’s sister were motivated by his attitude to the role of women in marriage. There will of course be extra protection afforded to the appellant by the trial judge’s directions to the jury, which will remind them that they must decide the case having regard to the evidence and be careful not to let any prejudice they may have influence the decision.
The jury may conclude that the respondent acted as he did because of his strict Muslim views, but this would be a conclusion founded upon the evidence and not resulting from any prejudice against Muslim people. The respondent’s conservative views in relation to women may be an important element in the Crown case, but not because of any inherent prejudice in the community against persons who hold those views.
I assume that the statement that “the jury would be told that the accused is a Muslim and that an issue in the trial is whether his actions in respect of his wife’s sister were motivated by his attitude to the role of women in marriage” refers to the prosecution’s likely factual argument about the defendant’s motive: The prosecution will want to point to the accused’s attitudes, neither as mitigating nor aggravating circumstances but just as an explanation for why he might have wanted to attack the victim, and a rebuttal to the claim that “he only picked her up from her seated position on the internal railing because she started to lose her balance while swearing at him. He feared that she would fall and he did not want her to injure herself.”
In this respect, it’s much like a defendant’s belief that critically depicting Mohammed is blasphemous would be admissible evidence in his trial for attacking a cartoonist who drew a critical picture of Mohammed — it would show that he had a motive to act as he did, and would rebut claims of accident or misunderstanding. If I misunderstand Australian law on this point, and the accused’s motivation is a legally significant aggravating or mitigating factor, and not just factually relevant in the way I describe, please let me know.
If you’re curious about American law on the subject of defendant’s waivers of jury trial rights that the prosecution opposes, see Singer v. United States (1965), which both describes the then-current state law rules, which vary, and the federal constitutional rule: (1) There’s no constitutional barrier to a defendant’s waiver of a jury trial if the prosecution agrees. (2) There’s no constitutional right to waive a jury trial over a prosecution’s objection, perhaps unless there is evidence that “‘passion, prejudice … public feeling’ or some other factor may render impossible or unlikely an impartial trial by jury” (a question that the Court did not resolve).
Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.