R v Nour (No 2) [2017] NSWDC 391

District Court New South Wales

Medium Neutral Citation: R v Nour (No 2) [2017] NSWDC 391 Hearing dates: 26 – 29 June 2017 Date of orders: 29 June 2017 Decision date: 29 June 2017 Jurisdiction: Criminal Before: Neilson DCJ Decision: Various rulings on evidence as set out in judgment below Catchwords: CRIME – PRE-TRIAL RULINGS – Tendency evidence – Context evidence – Transcripts/Tapes of two 0-0-0 calls – Possible admission at Police Station Legislation Cited: Evidence Act 1977 Cases Cited: Bryant v Regina [2011] NSWCCA 26 Hoch v The Queen [1988] HCA 50 Hughes v The Queen [2017] HCA 20 IMM v The Queen [2016] HCA 14 Regina v TD [2013] NSWCCA 337 Roach v The Queen [2011] HCA 12 Category: Procedural and other rulings Parties: Regina (Crown) Michael Nour (Accused) Representation: Counsel: Mr M Breeze (Crown) In person (Accused)

Solicitors: Solicitors for the Office of the Director of Public Prosecutions File Number(s): 2015/2089 Publication restriction: Nil

Judgment

Tendency evidence 1. HIS HONOUR: There is before me an application by the Crown to adduce tendency evidence. In the alternative, the Crown asks me to admit either the whole or part of the alleged tendency evidence as context evidence. 2. The tendency notice bears the date 11 October 2016. It was addressed to the accused's then lawyer, Mr Sam Abbas. The tendency sought to be proved is the accused's tendency to act in particular ways. The Crown has specified six ways in which it says the evidence proves the accused had a tendency to act. They are: 1. to assault the complainant, 2. to threaten the complainant, 3. to intimidate the complainant, 4. to threaten members of the complainant's family, 5. to intimidate members of the complainant's family, and 6. to prevent the complainant from contacting members of the complainant's family. 1. The evidence upon which the Crown relies are certain parts of a statement of the complainant, Jasmine Bohsali, who I now understand to be known as Jasmine Kelly, and certain statements made by the complainant's mother, Ms Suzanne Kelly, and certain text messages that passed between Ms Suzanne Kelly and the accused. 2. The first part of the evidence of the complainant relied upon is [4] and [6] of the first statement of the complainant made on 3 January 2015. I omit from what is printed in [4] of that statement evidence, which the Crown does not press, which relates to an allegation that the accused used illegal drugs and the effect of those drugs upon him. The Crown has told me, for example, that it does not wish to lead the last sentence of [3] of the complainant's statement which says this: "Mohammed was on medication for schizophrenia and he managed it well." The Crown tells me that it does not seek to adduce any evidence of any psychiatric illness suffered by the accused nor his response to medication or his use of illegal substances. 1. The remaining parts of [4] and [6] of the first statement are these: "Our relationship began to break down when we moved to Padstow about two years ago. Mohammed would just snap from being pleasant to being paranoid and aggressive in an instant. He would become paranoid that I was 'out to get him'. Mohammed would play with my emotions and abuse me mentally. Mohammed would lash out at me, kicking or slapping me in places which would be covered by my clothing." 6. Shortly after 11am [on 20 December 2014] Mohammed also arrived at his mother's house. Mohammed was still going on about the business card. He then said to me, 'If you do not tell me the truth I will smash your head in'. Mohammed was glaring at me when he said this and I knew it would escalate as it had in the past. I was scared what Mohammed may do." 1. The evidence which the Crown seeks to adduce from the complainant's second statement of 3 January 2015 is [6], [7], [12] and [14]. Although the tendency notice references [16] as well, the Crown accepts that [16] is part of what actually happened (the res gestae) and not evidence of any tendency. The paragraphs in question are these: "6. When Mohammed takes drugs he starts off really nice and then he will become very paranoid and that scares me. He has been violent with me in the past. He would interrogate me and accuse me of putting cameras in the house. He would get violent if I didn't answer him [;] he would then slap me or kick and hit me in the stomach. I became more and more scared of him but then I would think maybe he will get better. When he makes threats he scares me [;] I know he knows where my mother lives [,] my brother [,] my friends. He knows where they are and how to get to [them]. 7. In paragraph eight I said that I wanted to call police but Mohammed took my phone. Mohammed had taken my phone off me that morning. When he is paranoid with me he will take my phone off me [,] pull it apart and damage it. The phone I currently have is a cheap Nokia [;] it's black. It's like one of the old phones. Mohammed won't allow me to have a smart phone because it has access to the internet. I don't know what [my] number is as I have changed it that many times as Mohammed keeps taking or damaging my phones. I think it's in my name and I'm with Vodafone. … [12] Mohammed was driving behind me and making sure that I didn't drive anywhere else as he does this regularly. He times me or follows me regularly. … [14] I did not feel I could get away from Mohammed, the only places I am allowed to go are to his parents or sisters. I don't have any friends or relatives in Sydney. Mohammed tells me where I can go and what I can do. I have to call him consistently or he is with me always. I have to ask permission to go out of the house. I'm not allowed to go anywhere and where would I go. He would threaten my family that if I talked to anyone then he would hurt my family." 1. The first sentence of [6] of the second statement ought not be admitted because it clearly refers to illicit drug taking. The word "drugs" cannot refer to medication because medication would not have the effect of increasing any paranoia suffered by the accused. 2. In [12] in the second or final sentence the words "times me or" ought not be admitted because there is no relevant reference in any of the relevant facts to the accused's timing activities given by the complainant. 3. For the purpose of this ruling I have carefully read the recent decisions of the High Court of Australia in IMM v The Queen [2016] HCA 14 and Hughes v The Queen [2017] HCA 20. 4. The evidence from the complainant of earlier assaults upon her is not corroborated by any other evidence. It is not corroborated, for example, by a complaint to a relative, friend or neighbour, by attendance upon any medical practitioner or at any hospital or by any photographic evidence or the like. There is merely the say so of the complainant. In IMM v The Queen, French CJ, Kiefel, Bell and Keane JJ said commencing at [61]: "61. It may be accepted for present purposes that the evidence was relevant as it was capable of showing that the appellant had a sexual interest in the complainant as the trial judge ruled. This is not put in issue by the appellant. But s 97(1)(b) requires more. It requires that the evidence have significant probative value. 62. In a case of this kind, the probative value of the evidence lies in its capacity to support the credibility of the complainant's account. In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met. That is not to say that a complainant's unsupported evidence can never meet that test. It is possible that there may be some special features of a complainant's account of an uncharged incident which give it significant probative value. But without more, it is difficult to see how the complainant's evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value. 63. Evidence from a complainant adduced to show an accused's sexual interest can generally have limited, if any, capacity to rationally affect the probability that the complainant's account of the charged offences is true. It is difficult to see that one might reason rationally to conclude that X's account of charged acts of sexual misconduct is truthful because X gives an account that on another occasion the accused exhibited sexual interest in him or her." In the current case there is no suggestion of any sexual assault or indecent assault. This has nothing to do with an allegation of sexual misconduct. However, what is alleged is acts of violence perpetrated on the complainant and the complainant seeks to adduce evidence of earlier acts of violence towards her to corroborate her allegation of violence towards her on this occasion. For the reasons given by the plurality which I have just quoted, such evidence lacks significant probative value. Therefore I reject the tender of any evidence from the complainant that he had antecedent to 20 December 2014 either assaulted her or threatened her or intimidated her because there is no evidence to support any allegation of that nature by the complainant antecedent to 20 December 2014, as evidence of any tendency.. 1. However, parts of the evidence of the complainant which I have read do indicate that the accused had interfered with her ability to make contact with her relatives, in particular with her mother, Suzanne Kelly and her partner, Mr Chris Christofi and other close members of her family. There is some evidence to support that evidence from the complainant in text messages sent by the accused to the complainant's mother. 2. On 2 April 2014 at 8.38pm the accused sent this text message to Suzanne Kelly: "Don't message or ring us ever again We both have had enough of ur abuse Ur not welcome to come near our life anymore I hope you burn in hell" Leaving aside the unholy expectation expressed in the last line it appears to me that the first three lines of that communication support the tendency alleged by the Crown that the accused had a tendency to prevent the complainant from contacting members of her family, especially when it is read with other text messages of the same kind. 1. The next text message commenced shortly after 9pm on the same evening. The relevant part of the text message commencing shortly after 9pm is this: "Jaz doesn't want you in our life anymore either I hope you burn in hell I'm cutting off every single person on your side I don't want anyone in our life that even knows you They're all cut out from ur filthy remarks I will never even pass on a message Even if you're dying which I really hope you are I will not let jaz know Nor will I read the message" That clearly is a message sent by the accused showing a tendency of his to prevent the complainant having social intercourse with her family. 1. The next relevant piece of email is one of 31 March 2014 at about 9.58am. Leaving out the insults that precede and succeed what I am about to quote, the email is this: "enuf is enuf now im neva giving Jaz permision to C talk msg u again you pig she can pick ryt nw i hope you die a painful death ps NOW I'm gna cut nany 1 that's got anything to do with you off you want war you've got it" I believe it to be in the interests of justice and clarity that the Crown agree that the words "you pig she can pick ryt nw I hope you die a painful death" be excised from that quotation as I do not know what exactly it means but it appears to be merely an insult. 1. The remaining communication does not on the material currently before me have a date. It is set out on page 52 of exhibit VD1 and is repeated on p 66 of exhibit VD1. From p 66 I know that it was dated. It was timed at 3.07pm. Again neither p 66 or p 52 gives me a date for this communication. The communication is this: "N after i do you will never ever b able to come near us again Got it not you not your friends not one at or ever again Make that clear in ur head Because now you crossed the line in blocking use all off" The Crown should be able with its resources to ascertain the date on which that email was sent. Those emails sent by the accused corroborate what the complainant says about the accused's blocking her access to family members via at least electronic means, including telephonic means and I allow those text messages and those parts of the complainant's evidence on this subject as evidence of the accused's having a tendency to prevent the complainant from contacting members of her family. 1. The rest of the text messages which I have had the misfortune of having to read through do not establish any tendency to threaten members of the complainant's family or to intimidate members of the complainant's family. All they do is hurl abuse at the complainant's family. Even if they might be construed as threatening or intimidating their probative value, even if the probative value be significant is certainly outweighed by the prejudicial effect of having these abusive emails put into evidence. 2. The remaining evidence relied upon by the Crown as tendency evidence are paragraphs 4 and 5 of the statement of Suzanne Kelly. They are these: "4. It wasn't until March 17 2013, where I met her new boyfriend as they came to my house for my birthday. After this date I haven't seen Mohammed since. It wasn't until November 2013 when I saw my daughter again. From about April 2013, Mohammed started to be verbally abusive towards myself and my partner Chris. Mohammed was continuously saying that I'm a slut, I'm a dog and similar derogatory words. He was also abusive to me in the way of calling my daughter a slut and that he is going to give my daughter to his friends to enjoy. This upset me immensely. 5. At 4.57pm on 31 March 2014 I received a message from 0450 504 887 who I know belongs to Mohammed as I have been texting my daughter through the same phone number. My daughter doesn't have access to a phone and told me she uses Mohamed's phone every now and then to contact me. I have saved his number under "Frank". The message stated, 'Sweet. Ur daughter the little slut is being treated accordingly as I said Im gunna break your heart enjoy your daughter.' As a result of this message I immediately got scared for my daughter's safety. I hardly see my daughter and I always get worried about whether she is safe because I don't hear from her." The first three sentences of [4] are questions of fact. If they are relevant they can be adduced by the Crown. The fact that the accused commenced to be abusive towards Ms Suzanne Kelly and her partner after April 2013 does not appear to be a relevant fact, nor is it directly relevant to any issue in this trial. It may be that matters raised by the accused might make it relevant but that could only occur in cross-examination. The fact that Ms Kelly was upset is, in my view, irrelevant to the issues between the parties. 1. The text message quoted in [5] appears to me to be just another insult. The reaction of Ms Suzanne Kelly to the text message is irrelevant. The last sentence of [5] is a fact of which the witness could give direct evidence and she could compare her contact with her daughter in one period with how she had contact with her daughter in a prior period or in a subsequent period. 2. The text message referred to in [4] is one pressed vigorously by the Crown. The text message is this: "Now Im gna treat ur daughter like a little slut." "Im gna share her around like a little pro." I do not know when that was sent, either as to the timing or the date. There is no suggestion that the activity threatened towards the complainant ever occurred. There is no suggestion that anything like the threat communicated by the accused to the complainant's mother ever occurred and there is no evidence that what was threatened to the complainant's mother was ever threatened to the complainant. It was not a threat directly to the complainant's mother nor is there evidence it was ever communicated to the complainant herself. In my view, when I read all the emails together, it is merely another base insult. In other words, an idle threat, but it was not a threat made to the mother or directly to the daughter. In my view, this should not be admitted as evidence of any tendency, either a tendency to threaten the complainant or intimidate the complainant or to intimidate members of the complainant's family. As I said, read in context, it is merely an insult and is not, therefore, relevant. I reject the tender of that email as any evidence of any tendency.