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Court of Criminal Appeal 12 October 2001

R v Atroushi

[2001] NSWCCA 406

Firearms & weaponsPublic order & justice offences
CONVICTION APPEAL STALKING

Citation: R v Atroushi [2001] NSWCCA 406
Court: New South Wales Court of Criminal Appeal
Date: 12 October 2001
Judge(s): Giles JA, Howie J, Carruthers AJ (judgment by Carruthers AJ, with whom the others agreed)

Background

The appellant, a Kurdish-born man who had migrated to Australia in 1993, was tried in the Liverpool District Court on three counts: stalking a female family member (his uncle's daughter, referred to as the complainant) with intent to cause fear; maliciously wounding another family member; and possessing a loaded firearm in a public place. The stalking and firearm counts arose from events between 25 and 29 January 1998, when the complainant observed the appellant repeatedly watching her home from a car with opaque windows, and police subsequently found a loaded rifle with a telescopic sight in the boot of that car.

The appellant had sought to marry the complainant after arriving in Australia, but she refused, and she later married another man in 1995. An apprehended violence order had been taken out against the appellant by members of the family. The jury convicted the appellant on the stalking and firearm counts but acquitted him on the wounding count.

On appeal, the appellant challenged his convictions on grounds relating to the admissibility of background relationship evidence and the adequacy of the trial judge's summing-up.

  • Whether evidence of the appellant's conduct and threats toward the complainant and her family between 1993 and 1998 (the "relationship evidence") was admissible at trial
  • Whether the probative value of that relationship evidence was outweighed by the danger of unfair prejudice to the appellant
  • Whether the trial judge's failure to summarise the appellant's denials in the summing-up resulted in an unfair trial

Decision

The Court upheld the admissibility of the relationship evidence. The stalking offence under s 562AB of the Crimes Act 1900 required the Crown to prove that the appellant intended to cause the complainant to fear physical or mental harm, and that he knew his conduct was likely to cause such fear. The background evidence of prior conduct and threats toward the family was directly relevant to establishing that state of mind and was therefore properly placed before the jury.

The Court found that the probative value of the relationship evidence was not outweighed by any danger of unfair prejudice. The evidence explained the context of the relationship between the appellant and the complainant and was necessary for the jury to properly evaluate the intent element of the stalking charge. The trial judge had given appropriate directions limiting the use of the evidence.

On the summing-up ground, the Court noted that the trial judge did not separately rehearse the evidence but did summarise the closing submissions of both counsel, which had been delivered immediately before the summing-up. The trial judge also reminded the jury that all evidence was tape-recorded and available for replay. Significantly, defence counsel at trial raised no objection to this approach and confirmed he had no difficulty with it. The Court held that, given the simplicity of the defence (which rested essentially on denials), no unfairness resulted. Rule 4 of the Criminal Appeal Rules applied to preclude the ground being raised without objection at trial.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Under s 562AB of the Crimes Act 1900, the Crown must prove the accused intended to cause the complainant to fear physical or mental harm, and knew the conduct was likely to have that effect. The accused's state of mind is a central element.
  • Background "relationship evidence" spanning several years before the charged conduct was admissible where it was directly probative of the accused's intent and knowledge, and its probative value was not outweighed by the risk of unfair prejudice.
  • A trial judge's failure to rehearse evidence in a summing-up does not automatically render a trial unfair, particularly where counsel addressed the jury on the evidence immediately beforehand and defence counsel raised no objection to the approach at trial.
  • Where a defence rests on simple denials, the Court of Criminal Appeal confirmed that a detailed judicial recitation of those denials in the summing-up may not be required in every case.
  • No error was established in either the evidentiary rulings or the conduct of the summing-up, and the conviction appeal was dismissed in full.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35, 93G(1)(a)(i), 562AB
- Criminal Procedure Act 1986 (NSW), s 99
- Evidence Act 1995 (NSW), ss 55, 135, 136, 137
- Criminal Appeal Rules, r 4

Cases:
- Alford v Magee (1952) 85 CLR 437
- Gipp v The Queen (1998) 194 CLR 106
- Harriman v The Queen (1989) 167 CLR 590
- Papakosmas v The Queen (1999) 196 CLR 297
- R v AN (2000-2001) 117 A Crim R 176
- R v Beserick (1993) 30 NSWLR 510
- R v Etherington (1982) 32 SASR 230
- R v Garner (1963) 81 WN (Pt 1) (NSW) 120
- R v MM (2000) 112 A Crim R 519
- R v Vandine (1970) 1 NSWR 252
- R v Zorad (1990) 19 NSWLR 91
- Wilson v The Queen (1970) 123 CLR 334