R v AKB (No. 4) [2018] NSWSC 1082

Supreme Court New South Wales

Medium Neutral Citation: R v AKB (No. 4) [2018] NSWSC 1082 Hearing dates: 12 July 2018 Date of orders: 12 July 2018 Decision date: 12 July 2018 Jurisdiction: Common Law Before: Davies J Decision: Evidence in paragraph 32 of statement of Malaly Iskandary and paragraph 6 of statement of Razieh Mohammadi rejected Catchwords: EVIDENCE – criminal law – relationship evidence – hearsay evidence from deceased – whether events in representations too remote in time to be relevant – whether evidence has probative value Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Clark v R [2001] NSWCCA 494; (2001) 123 A Crim R 506 R v Frawley [2000] NSWCCA 340 Wilson v R (1970) 123 CLR 334 Texts Cited: Nil Category: Principal judgment Parties: Crown [AKB] (Accused) Representation: Counsel: C Maxwell QC & R Kotsis (Crown) C Davenport SC (Accused)

Solicitors: Office of the Director of Public Prosecutions (Crown) Oxford Lawyers (Accused) File Number(s): 2016/311049

JUDGMENT 1. The Crown seeks to lead evidence from Malaly Iskandary in terms of para 32 of his statement which reads: XY never told me about AKB being violent towards her except for when they lived in Iran. XY told me that AKB bashed her in front of his family and when XY asked him why he was doing this he said he wanted his family to know he had control over her. Besides that she did not tell me anything in Australia other than he wanted her under his control. 1. The Crown also seeks to lead evidence in terms of paragraph 6 of the statement of Razieh Mohammadi which reads: One of the days that we were walking, XY told me that she had went (sic) to Iran with AKB for a holiday because AKB's family lived in Iran. XY told me that AKB had bashed her up in front of his family because she did not pack a shaving blade for him. I didn't say anything back when XY told me this. 1. The Crown seeks to lead these two passages as relationship evidence to meet any possible hypothesis of innocence that the defence may put forward. The Crown believes that the defence will argue that the relationship was a mostly harmonious one, but senior counsel for the accused made clear that the defence will not be asserting that the relationship between the accused and the deceased was a harmonious one. However, the defence will be relying on an accident as far as the fire was concerned. 2. The defence says that for this evidence to be admitted, it would have to satisfy one of the requirements in s 65(2) of the Evidence Act 1995 (NSW) and it does not do that. The defence also opposes the admission of these statements on the basis of the remoteness of time between the events that are described in them and the fire. The incident or incidents in Iran occurred at the latest in 2007 and at the earliest in 2005, that is, nine to eleven years prior to the fire. 3. The Crown submits that, although the Iran incident was some years ago, it is a classic demonstration of the accused's attitude to the deceased, and his approach to the power and dominance of the man in the marriage. 4. In general terms, I accept that this sort of relationship evidence is relevant and admissible: Wilson v R (1970) 123 CLR 334; Clark v R [2001] NSWCCA 494; (2001) 123 A Crim R 506 at [135]–[137]. However, it must first satisfy one of the requirements in s 65(2) of the Evidence Act. 5. I consider that it is, in the first instance, admissible by virtue of s 65(2)(c), that is, that it was made in circumstances that make it highly probable that the representation is reliable. It is difficult to see what basis the deceased would have for making that evidence up when she was confiding in good friends at the time the representations were made. No proceedings of any sort between the deceased and the accused were on foot that could explain any form of false complaint. 6. However, regard must be had to the time of the events described in the representations made, and the event relevant to the present charge against the accused, that is, the fire. In that regard the Crown drew my attention to the decision in R v Frawley [2000] NSWCCA 340. In that case evidence of events between four months and six weeks before the killing of the deceased was considered appropriate for admission of the relationship evidence: see at [14]. 7. In Wilson, Barwick CJ spoke (at 337) about "the nature of the current relationship". While I accept that evidence in the present case about the deterioration of the relationship over a lengthier time than, say, four months would be relevant, the events in Iran in both cases occurred some considerable time before the fire. 8. If those representations are considered to be true by reason of their being made, it would only establish that the deceased was being controlled by the accused some nine to 11 years ago, and that was his then approach to the marriage. Since that time, nine to eleven years have elapsed, two children have been born to the marriage, and they now reside in Australia. 9. Certainly, other evidence to be led suggests that the accused has, at various times, controlled or tried to control the deceased in more recent times, but not in the somewhat extreme way described in the deceased's representations about what happened in Iran. Indeed, paragraph 32 of Ms Iskandary's statement makes clear that the deceased never told her about the accused being violent towards her except when they lived in Iran. That evidence also tends to show that the deceased has successfully asserted her independence from the accused from time to time in a way that makes the Iran incident of much less probative value. 10. I consider in all of those circumstances that the event or events about which the representations are made are too remote in time to be relevant. If they are probative, they are outweighed by the prejudice to the accused under s 137 of the Evidence Act. 11. Those passages are rejected.