R v Khoshdil [2024] NSWDC 257

District Court New South Wales

Medium Neutral Citation: R v Khoshdil [2024] NSWDC 257 Hearing dates: 23 May 2024 Decision date: 14 June 2024 Jurisdiction: Criminal Before: S Hanley SC DCJ Decision: Relationship/context evidence is admissible other than as identified Legislation Cited: Crimes Act 1900, ss 61I, 61HJ(1)(h), 61HJ(1)(e), 61HJ(1)(f) Evidence Act 1995, ss 97, 101, 137 Criminal Procedure Act 1986, ss 294CB (3), 294CB(4)(b) Cases Cited: HML v R [2008] HCA 16 R v Merrick (No 2) [2016] NSWSC 164 R (Cth) v Seguel [2024] NSWCCA 37 R v Latu [2018] NSWSC 1659 Elomar v R Hasan v R Cheikho v R; Jamal v R [2014] NSWCCA 303 R v Allen [2020] NSWCCA 173 Category: Procedural rulings Parties: Rex (Crown) Noorolhaq Khoshdil (Offender) Representation: Ms B Parker, Trial Advocate for the DPP Ms T O'Rourke, Counsel for the Offender File Number(s): 2022/00220632

JUDGMENT 1. The accused is to stand trial, on the 24 June 2024, in respect of one count contrary to s 61I Crimes Act 1900 that alleges: "Between 14 July 2022 and 27 July 2022 at Blacktown the accused had sexual intercourse with Benafasha Khoshdil, without her consent, knowing she was not consenting to the sexual intercourse". 1. The Crown abandoned a previous Indictment with multiple counts, an application for tendency evidence to be adduced and an intention for offences on a s 166 Certificate to be heard at trial and replaced it with the one count an ex-officio indictment, abandoned the Tendency Notice and instead sought to rely on the admission of evidence that is described as context/relationship evidence, and agreed the alleged offences on the s 166 Certificate can be heard by the trial judge at the conclusion of the trial. 2. I have read the Crown's Case Statement and the evidence sought to be relied upon as set out in Exhibit A). I commend the Crown's approach to prosecuting the accused. It allows the trial to proceed by requiring a jury to determine whether they are satisfied beyond reasonable doubt as to guilt of the accused in considering if the Crown has proved to the requisite standard, in my assessment, the two central issues being: 1. Was the complainant consenting. 2. If not, did the accused know she was not consenting as defined by law regarding "knowledge" of lack of consent. 1. The accused is represented by Ms O'Rourke of counsel. His solicitor, Ms Dao filed a Notice of Motion and Affidavit in support, initially challenging the admission of tendency evidence. Because of the change in the way the DPP is now prosecuting the accused at trial I have received addition "supplementary" submissions from both parties addressing the changes in the nature of the evidence the Crown seeks to rely. 2. Also, consequently I have been advised that Annexures A, B and C of Ms Dao's affidavit dated 26 April 2024 are no longer relied on. Annexure "D" that helpfully identifies the evidence challenged and basis remains relevant in my determination, but for the objections to the accused's ERISP which is not being tendered by the Crown at trial. 3. It is incontrovertible that the accused and complainant were at the relevant time husband and wife having married in their native country of Afghanistan in about 2014. They have 2 children. They travelled to Australia as refugees, arriving on the 24 June 2021 and initially resided in South Australia and later in the same year in Blacktown.