Supreme Court New South Wales Medium Neutral Citation: R v AKB (No. 6) [2018] NSWSC 1111 Hearing dates: 17 July 2018 Date of orders: 17 July 2018 Decision date: 17 July 2018 Jurisdiction: Common Law - Criminal Before: Davies J Decision: The evidence in answers 22 and 23 of the statement of Zahra Najafi may be adduced. Catchwords: EVIDENCE – criminal law – relationship evidence – hearsay evidence from deceased – representation made by the deceased said to be inconsistent with other undoubted evidence – whether evidence of representation has probative value – whether probative value outweighed by prejudice to the accused Legislation Cited: Evidence Act 1995 (NSW) ss 65, 165 Cases Cited: Nil Texts Cited: Nil Category: Procedural and other rulings 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 Zahra Nagafi, the mother of the deceased. Ms Nagafi records in answers 22 and 23 to written questioning a conversation with the deceased a few days before the fire where the deceased told her mother that the accused had locked her in the bedroom a few nights before the conversation with her mother. The evidence was said to be of low probative value and highly prejudicial. 2. Objection was taken on the basis that the evidence was said to be of very low probative value because what the deceased is supposed to have said was against the evidence adduced about how the door could be locked; that the bedroom door was not able to be locked from the outside. It was said to be highly prejudicial because what was being asserted a few days before the fire took place in that very bedroom, was that the accused had locked her in the bedroom. Senior counsel for the accused argued that such prejudice was compounded because she was unable to cross-examine the deceased about the statement. 3. Senior counsel said in answer to my enquiry that she would be asking for a general hearsay warning under s 165(1)(a) of the Evidence Act 1995 (NSW). 4. In the first place, the evidence is admissible under s 65(2)(b) or (c). It does not seem to have been suggested otherwise. The real enquiry is whether its probative value is outweighed by the danger of unfair prejudice to the accused. 5. The evidence forms part of the relationship evidence being led by the Crown to rebut the suggestion of the fire being an accident. The matter reported by the deceased to her mother is further evidence of the accused's attempts to exert control over her. Its probative value lies in the close contemporaneity to the fire and what both WB and MB reported occurred at the time of the fire. I also accept the Crown's submission in that regard that it could be said that a person was locked in a room if another person held the door shut. 6. I accept that there is some prejudice to the accused if this evidence is led. However, I intend to give a hearsay warning about the relationship evidence given by friends and family of the deceased. That warning will include a mention of the fact that the evidence discloses that the deceased did not always tell the truth. Instances include what she said to the real estate agent, Ms Atah, and what she said to Mr Hassanloo in her social media profile and subsequently upon meeting him. Further, the evidence from the locksmith was very clear that the door was not able to be locked from the outside. That points to the deceased not being accurate in saying that she was locked in the room. 7. To some extent, the evidence assists the accused because it enables the accused to suggest to the jury that the deceased was prepared to say untrue things about him to justify her decision to leave him. 8. I consider that any prejudice to the accused can be satisfactorily dealt with by the nature of the hearsay warning that the jury will be given and by the jury being reminded of the evidence of the forensic locksmith, both of which suggest that these statements of the deceased have to be scrutinised carefully by the jury. 9. In my opinion, the evidence should be admitted. ********** Amendments 26 July 2018 - Publication restriction removed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2018