R v Abdallah (No 1) [2015] NSWSC 2156

Supreme Court New South Wales

Medium Neutral Citation: R v Abdallah (No 1) [2015] NSWSC 2156 Hearing dates: 2 February 2015 Date of orders: 02 February 2015 Decision date: 02 February 2015 Jurisdiction: Common Law Before: Adamson J Decision: Evidence excluded Catchwords: EVIDENCE – tendency evidence – evidence of earlier altercation between accused and sister of deceased – knife used – significant probative value – probative value does not substantially outweigh prejudicial effect – evidence excluded Legislation Cited: Evidence Act 1995 (NSW) ss 97, 101 Cases Cited: Dao v R [2011] NSWCCA 63 Category: Procedural rulings Parties: Regina Katherine Abdallah (Accused) Representation: Counsel: S Herbert (Crown) G Stanton (Accused)

Solicitors: Solicitor for Public Prosecutions (Crown) Bannisters Lawyers (Accused) File Number(s): 2013/40978

Judgment – EX TEMPORE 1. The accused applied by notice of motion filed 22 September 2014 to have ruled inadmissible so-called tendency evidence, which comprises evidence by way of a statement and committal evidence by Christine Sarkis who is the sister of the deceased. 2. The evidence in substance is that, a few months before the death of the deceased in February 2013, there was an altercation between Christine Sarkis and the accused, which occurred in the accused's home. An argument between them became violent. Blows were exchanged. The accused took a knife from her own kitchen and inflicted a laceration on Christine Sarkis which caused her to bleed. Although no stitches were required, there was apparently a scar as a result of that injury. 3. The Crown seeks to rely on that evidence to show that the accused has a tendency to act in a particular way within the meaning of s 97 of the Evidence Act. The matters sought to be proved are that the accused has a tendency to arm herself with a knife during arguments, to use a knife to threaten participants during arguments, and to use a knife to cause injury to participants during the arguments. The tendency sought to be proved is her tendency to have a particular state of mind, namely, an intention to threaten participants in an argument with a knife in order to intimidate the other person. On the Crown case, that tendency was manifested both in the altercation with Christine Sarkis and subsequently in the altercation with the deceased which led to her death in February 2013. 4. The probative value of the evidence is, that it tends to establish the accused's mental state and tends to show what she was prepared to do in a situation of conflict. It may assist in resolving the question of whether she, as the Crown contends, was prepared to pick up a knife to threaten and harm the deceased, or, as presumably the accused contends, only did so to use a knife to defend herself against the deceased, who was relevantly, an aggressor. 5. The admissibility of this evidence is governed by, in particular, s 97 of the Evidence Act. I am satisfied that the evidence sought to be adduced by the Crown amounts to tendency evidence. 6. Mr Stanton for the accused conceded, properly in my view, that the evidence is relevant and has some probative value. This is not sufficient in that it is necessary for me to form the view that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. Mr Stanton submitted that the evidence did not have significant probative value because of the power and probative value of the CCTV footage of the events in question, or at least those which took place within the accused's apartment house. 7. The Crown case includes evidence as to what occurred in the period of time before the accused and the deceased went to the accused's townhouse. 8. Madam Crown contended the evidence has significant probative value because it shows that, on another occasion which is not dissimilar and bears some of the features of the alleged offence, the accused was indeed prepared to pick up a knife for an aggressive purpose, and this is highly relevant because she has been charged with murder, and the Crown is required to exclude self-defence or provocation. 9. The Crown also submitted that I should be satisfied, as I am required to be, by s 101 of the Evidence Act, that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. 10. Mr Stanton submitted that the evidence is highly prejudicial to his client because it would result in a trial within a trial of the events concerning the altercation with Christine Sarkis. He contended that the use of a knife against Christine Sarkis (which is denied by his client) would have been an entirely innocent act if done in self-defence, and the jury could well be distracted by evidence relating to that altercation, when the only real issue in the case is the mental element of the accused at the time she stabbed the deceased in her own flat in February 2013. 11. Madam Crown contended in response to that that that is always the case when tendency evidence is to be relied upon, and that, if the evidence were allowed, the jury would only be entitled to take it into account if the Crown proved it beyond reasonable doubt, and those matters could be the subject of direction. She also submitted that it is also the case that, because the evidence pertains to a single altercation on a single day, it is not likely to take up a great deal of time at the trial. 12. The Crown further submitted that the prejudicial effect in s 101 is a reference to evidence being used against an accused person for a purpose other than that for which it is admitted, and the only prejudicial effect to the accused of the evidence is the evidence in fact being used for the purpose for which it is admitted, namely, the tendency purpose. The Crown relied on the decision of the Court of Criminal Appeal in Dao v R [2011] NSW CCA 63, per Simpson J, with whom Spigelman CJ, Allsop P and Kirby and Schmidt JJ agreed, at 150. 13. I am satisfied that the evidence is tendency evidence. I am satisfied that it has significant probative value within the meaning of s 97(1)(b). However, it is not to be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. Although I consider the probative value of the evidence to be sufficiently significant to warrant that description in s 97, I am not satisfied that its probative value substantially outweighs any prejudicial effect it may have on the defendant within the meaning of s 101(2) of the Evidence Act, and on that basis I exclude the evidence.