R v Samandi [2018] NSWDC 397

District Court New South Wales

Medium Neutral Citation: R v Samandi [2018] NSWDC 397 Hearing dates: 16 October 2018 Date of orders: 16 October 2018 Decision date: 16 October 2018 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Application to sever Count 5 from the indictment is granted. Catchwords: CRIME – Procedure – separation of count from indictment – unrelated conduct – raising character – "prejudice in conduct of defence" – interests of justice Legislation Cited: Criminal Procedure Act 1986 Cases Cited: R v Assim [1966] 2 QB 249 BJS v The Queen [2011] NSWCCA 239 De Jesus v The Queen [1986] HCA 65 Harriman v The Queen (1989) 167 CLR 590 Ludlow v Metropolitan Police Commissioner [1971] AC 29 Mac v The Queen [2014] NSWCCA 24 R v Quach [2002] NSWCCA 519 R v Farrell & Cotton (1990) 48 A Crim R 311 R v Kray [1970] 1 QB 125 Ross v The Queen [2002] NSWCCA 207 The Queen v Sutton (1982) 152 CLR 528 Webb & Hay v The Queen (1994) 181 CLR 41 Category: Procedural and other rulings Parties: Regina Ali Samandi - Accused Representation: Counsel: Mr C Taylor - Crown Mr L Brasch - Accused File Number(s): 2017/58827 Publication restriction: Nil

Judgment 1. Ali Samandi is to stand his trial in this Court in respect of charges set out in an indictment which I have a copy of, but which the Crown had proposed to file in calling the accused to trial. 2. On that current indictment, there are 15 counts. Four of those counts, as I understand it, are counts relating to allegations of sexual intercourse without the consent of his former partner knowing she was not consenting. For the purpose of this judgment, I will give her the letters XX. I direct there be no publication of any material that would lead to her identification, save for the purposes of this judgment. 3. Those counts are counts 10, 11, 13 and 15. Those four counts relate to events, respectively, between 11 February 2017 and 22 February 2017. In addition, in respect of what is proposed to be prosecuted by the Crown, there is in count 1 an allegation of assault of the complainant on 17 December 2015; another allegation in count 2 of assault between 1 February 2016 and 29 February 2016, an allegation of assault occasion actual bodily harm allegedly committed between 1 February 2016 and 31 March 2016, in count 4 an allegation of assault occasion actual bodily harm on 2 May 2016, a count highly relevant as the arguments revealed a consideration of the application made on behalf of the accused. Count 5, the count sought in the motion filed on behalf of the accused to be separated from the indictment, alleges against the accused that he on 4 May 2016 at Parramatta in the State of New South Wales did make an accusation namely that New South Wales Police officers had assaulted him and XX with intent that the New South Wales Police officers be the subject of an investigation he Ali Samandi knowing them to be innocent of the alleged offence. I will come back, as I said, to the connection between what is sought to be proven in relation to count 5 to count 4, shortly. 4. Count 6 is a separate allegation of assault occasion actual bodily harm alleged to have occurred between 1 September 2016 and 30 September 2017. Count 7 is another allegation of assault occasion actual bodily harm in December 2016. Count 8 is an offence of common assault in the same month of 2016. Count 9 is an allegation of assault occasion actual bodily harm in the same month of 2016. Count 11 is an allegation of assault occasion actual bodily harm on the same date as count 10 alleging sexual intercourse without consent. Count 14 is an allegation of intentionally damaging an Apple iPhone, the property of the complainant, on 15 February 2017. 5. The Crown came well prepared today. I compliment the Crown on his industry and that of his instructing solicitor. Because the issue that arises from the motion that was filed today apparently has not been raised in front of any judge before whom this matter has come, notwithstanding the fact that the matter was listed to start last Monday week. I mentioned the matter last Friday in the middle of doing a trial and many sentence matters, to indicate to the parties I was prepared to take the matter but would not be able to start the matter until Monday 15 October 2018. 6. I specifically asked the parties if there were any pre trial issues that needed to be resolved. I was told there may be some issues of admissibility as the evidence unfolded, but I was told there were no pre trial issues. Yesterday the matter came before me in the fond hope that we could empanel the jury, I was summing up to a jury in relation to that other trial, and my summing up in that trial did not finish till approximately 20 minutes to 3 or quarter to 3. At that point the learned Crown Prosecutor was available. The accused was brought up to Court but, unfortunately, and it is certainly no fault of Mr Brasch who appears for the accused, Mr Brasch was otherwise engaged taking a verdict in another trial in which he has been involved. In fact, whilst waiting for this trial to commence I appreciated Mr Brasch has had commitments in relation to that other matter. 7. Ultimately, by the time Mr Brasch had arrived at Court which was just after 20 past 3, it was quite clear given the size of the indictment, that the time that it would take to empanel a jury for a trial expected to run for four to five weeks that there was no hope of being able to do that before the close of business. In any event, in anticipation of Mr Brasch not being here in a timely fashion I had indicated that the panel was awaiting called to this Court be dismissed for the day. 8. When I came on the Bench this morning, the motion that I have referred to was presented. I should say, against myself perhaps, that in the absence of Mr Brasch and then in the presence of Mr Brasch, I had asked the Crown, in effect, what count 5 was doing in the indictment, bearing in mind, if I can use a colloquialism, that the character of the charge stands out like a sore thumb by comparison to the other allegations that are set out in the indictment involving acts of alleged violent both sexual and physical, against the complainant. 9. Overnight I understand, there was some discussion between the parties. Mr Brasch had intimated in light of the fact that I had raised the matter with the Crown, that he had been thinking about the matter for some period of time, albeit briefly. I suggested that he discuss the matter with the learned Crown Prosecutor. I am assuming they did discuss the matter but the Crown was insistent that count 5 should remain in the indictment, and a measure of that insistence is, in anticipation of a motion that had not been filed, the Crown gathered together some authorities, prepared very helpful written submissions, and was, as I understand it, fully prepared to meet the application on behalf of the accused. 10. In the material presented to the Court I have a very detailed Crown case statement which sets out in 25 pages details as I would understand it from the Crown perspective in relation to the various counts in the indictment, including count 5. I should point out, as it is relevant to an assessment of whether I should separate count 5, there is a summary of evidence of other allegations of physical violence by the accused and sexual violence by him against the complainant, occurring outside the State of New South Wales. Primarily, as I understand it, in Queensland. 11. The various matters identified in the indictment, that is offences committed within New South Wales, are alleged to have been committed in the Western Sydney area at various places such as Parramatta, North Parramatta, Campsie, Belmore, Castle Hill, and the like. 12. The Crown would wish to, and I understand there is no objection to it and it seems to me perfectly proper for the Crown to do so, lead evidence of other alleged offences by the accused as providing a context for the matters that are amenable to justice here in New South Wales. In addition to the Crown case statement I have a very lengthy statement from the complainant, I have not read, obviously, the entirety of that statement, which runs in the version that I have here to over 500 paragraphs. But I have read the paragraphs that the Crown identified as being particularly pertinent to counts 4 and 5, that is paras 120 to 141 of her statement. I feel that the matters set out in the Crown case statement, fairly but in summary form, represent matters thought to arise from the statement of the complainant I have other material that touches upon the circumstances of the arrest of the accused on 2 May following upon the alleged events giving rise to count 4, and relating to the subject matter of the accused's discussions with an Inspector of Police, which give rise in part along with other matters, to the allegation in count 5. That is that the accused had falsely to use my word alleged that at the time of his arrest on 2 May the accused had been assaulted by police and by taking the matter to the Inspector, sought to have an investigation in circumstances where the Crown alleges he knew those persons to be innocent of the charges or allegations that he made. 13. I do not need to particularise the detail of the annexures to the statement of the complainant beyond pointing out there are photographs that are part of the allegation in count 5 and clearly relevant to the allegation in respect of count 4. As well there are other annexures in the Crown bundle. 14. The other material I have, apart from the Crown's helpful written submissions, is the Tendency Notice that is dated 4 October 2018. The Crown said there were several drafts that existed before that, but as I understand it this is the only "Tendency Notice" based on what the Crown said. I ask aloud, why are not these Tendency Notices being prepared months in advance of the trial, bearing in mind the trial has probably been listed for six months. But, be that as it may, no complaint is made by Mr Brasch at this stage in relation to lack of notice. 15. The Tendency Notice is of relevance to the issues I have to resolve in this material respect, the Crown would seek to establish that the accused had a tendency to act in a particular way, firstly, to act violently towards the complainant, including by way of assaulting her. Secondly, to act upon his, "sexual attraction to the complainant," by engaging acts of sexual intercourse with the complainant without her consent, in circumstances where he knows she is not consenting. 16. The Crown Tendency Notice has attached a schedule of evidence sought to be relied upon to establish the relevant tendencies. It would seem to me, if I be so bold to say so, that it may turn out, and we have not workshopped this, that the first tendency identified is a relevant tendency to establishing the accused's guilt in relation to counts, including count 4, other than counts 10, 12, 13, and 15; and the second tendency is a relevant tendency to the proof of guilt of the accused in relation to the four counts of alleged sexual intercourse without consent. None of those tendencies identified in the Tendency Notice are relevant to establishing that the accused had made a false allegation against the police, that the police officers had assaulted him and the complainant, with an intent that they be subject to an investigation knowing them to be innocent of the alleged offence. 17. The Crown drew my attention to what he described as contained within para 7, and I will read that onto the record. I do so not out of disrespect to the Crown's submission. But, ultimately, it does not take the matter as advanced by the Crown, any further other than to underline the fact that, as a consequence of the order that I have made, if there be a trial in relation to count 5 standing alone, there will be a body of evidence required to be called beyond the allegation in count 4, amongst other reasons, to put into context the allegation contained in count 4, that is the allegation of assault occasion actual bodily harm, and presumably to pursue the issue of, "tendency" to act in a violent way towards the complainant. 18. With regard to para 7 of the Notice, it should be read in the context of para 6: "In the view of the lawyer with the current conduct of the matter, the tendency evidence sought to be adduced bears upon the facts in issue in this prosecution including the following facts in issue, (i) whether the accused had assaulted the complainant as alleged in the indictment; (ii) whether the accused did have sexual intercourse without the consent of the complainant, namely the complainant was not consenting as alleged in the indictment." 1. In relation to "facts in issue" to summarise it, the first part of the particulars dealing with (i) above as I have just quoted the Notice states, "In relation to all allegations of assault, counts 1, 2, 3, 4, 6, 7, 8, 9 and 11, the Crown relies upon the evidence in relation to each such count with respect to other individual counts." 2. In respect of the facts that are alleged, particularly in relation to count 4 and count 5 noting the potential relevance of other alleged actions of the accused in proof of guilt of the accused in respect of count 4, the relevant paragraphs in the Crown statement appear at paras 27 to 45. I don't want to do a disservice to the detail of the Crown case statement, but rather than read it onto the record or skim over it, suggesting I have not paid any attention to what is it in the Crown case statement, I will summarise what that material refers to. 3. Count 4 is concerned with an assault occasioning actual bodily harm. Police came to the premises occupied by the accused and the complainant afterwards. The accused asked the complainant to give a false account as to her presentation, her distress. The Crown case is she was in fact injured by the accused's actions, thus giving rise to the assault occasioning actual bodily harm. When the police arrived, the accused said abusive words to the police, or offensive words, and, as would appear on the basis of the Crown case, violently resisted arrest. He then subsequently inflicted upon himself an injury with a view, on the Crown case, in relation to count 5, to complaining to senior police that in being arrested or held by the police the injuries that were self inflicted were in fact inflicted by the police. 4. He then made a complaint to an Inspector of Police that he and his wife were in fact injured by the police. He then later photographed injuries that appeared on his wife's body, which were hidden from the police when they arrived because she was wearing full length clothing, which in fact, on the Crown case, he had inflicted upon her, and also apparently photographed the injuries to himself. 5. That is a potted summary. I may have done disservice to some of the detail. But ultimately the relationship of count 5 to count 4, and I have already indicated to the parties it is clear to me that some of the evidence involved in count 5 must be relevant to count 4, is concerned with, firstly, if it be led in evidence, explaining the conduct of the complainant when the police arrived on 2 May, and her giving an account which is inconsistent with the account which the Crown will rely upon at trial. It is also relevant to establishing the fact that she was injured by the accused, although police did not see injuries. Also explaining the circumstances in which those injuries, later photographed by the accused, came to pass other than had been the subject of complaint to the Inspector at the time that the accused on 4 May spoke to a senior officer at a police station. 6. I will come back to what has arisen from the submissions and the detail of the evidence, as I understand it, that is relevant to counts 4 and 5. But as I said a moment ago, it seems to me that at least some of the evidence in relation to count 5 prima facie has relevance to count 4, as I have said. It is also the case in my view, and this is a matter that I do not propose to resolve at this point but will need to be resolved later in the trial, that what arises out of the attendance of the police on 2 May and the subsequent approach of the accused to the police in relation to their attendance on 4 May, is not relevant to proof of guilt of the accused in relation to count 4. Either by reference to any tendency reasoning, which is not pleaded in the Tendency Notice in any event, or any other basis. 7. If I may identify that evidence in summary. Firstly there is the issue of the relevance to proof of guilt of count 4 of the accused's conduct on the police arrival, or particular aspects of the accused's conduct, including the statements that he made of an insulting character to the police. There is the issue of the admissibility or, to put it another way, the relevance and then otherwise admissibility of the self infliction of injury. Clearly relevant to count 5 in its terms, but difficult to see its relevance to count 4, other than perhaps as some quite "contextual evidence." And also there is the issue of the falsity of the allegations the accused made to the Inspector, and their relevance to proof of guilt in relation to count 4 save in respect of such falsity that relates to the circumstances of the injury that was occasioned by the accused's wife.