Citation: R v Hamoui [No 1] [2004] NSWSC 1052
Court: Supreme Court of New South Wales, Common Law Division (Criminal List)
Date: 11 November 2004
Judge(s): Kirby J
Background
The accused was charged with the murder of his former partner, who was found strangled in her parked vehicle in Fairfield in June 2001. She had been reported missing the day before her body was discovered. The Crown's case was circumstantial, and it sought to lead extensive evidence about the nature of the relationship between the accused and the deceased, including a history of physical violence, threatening language, and controlling behaviour.
Before the jury was empanelled, a number of preliminary evidentiary objections were argued. The accused challenged the admissibility of the general relationship evidence, a specific violent incident from January 2001, the validity of a police Detention Warrant and consequent DNA evidence, and the Crown's proposed reliance on the coincidence rule under the Evidence Act 1995.
This judgment deals with the first two of those four issues: the general relationship evidence and the specific January 2001 incident.
Legal Issues
- Whether evidence of the broader relationship between the accused and the deceased, including episodes of violence, threats, and controlling behaviour, was admissible as part of the Crown's circumstantial case.
- Whether a specific incident on 23 January 2001, during which the accused allegedly confronted the deceased in her vehicle and produced a firearm, should be excluded as a matter of discretion under ss 135 or 137 of the Evidence Act 1995.
- Whether the probative value of the relationship evidence and the January 2001 incident was significantly outweighed by the danger of unfair prejudice to the accused.
Decision
Kirby J held that the general relationship evidence was relevant and admissible as part of the Crown's circumstantial case. Evidence of the accused's repeated threats to kill the deceased if she was with another man, physical assaults, stalking behaviour, and his possessive and controlling conduct all bore directly on the question of whether he had a motive and an intent to kill her. This evidence was not excluded under ss 135 or 137, though particular phrases or passages remained subject to specific objection as individual witnesses came to give evidence.
On the January 2001 incident, the Crown sought to adduce evidence of a police statement made by the deceased the following day and an amended statement made three days later, in which she described the accused confronting her, producing what appeared to be a rifle, and behaving in a threatening manner after learning she was involved with another man. Kirby J accepted that the statements were made voluntarily, that the deceased appeared coherent and capable when making them, and that they were reliable to the required standard of proof on the balance of probabilities under s 142.
The accused argued that admitting this evidence would cause unfair prejudice because the jury would learn he had been in possession of a firearm and faced related criminal charges. Kirby J acknowledged those concerns but noted that the deceased had not been killed with a firearm, that the jury would be directed against propensity reasoning, and that the incident was otherwise probative of the accused's state of mind, including jealousy and a sense of possessiveness triggered by the deceased's involvement with another man.
Applying the test in s 137, Kirby J concluded that the probative value of the January 2001 evidence significantly outweighed the danger of unfair prejudice. The evidence of both the general relationship and the specific incident was admitted.
Orders Made
- Relationship evidence admitted as relevant and probative, subject to any specific objections to particular passages before individual witnesses gave evidence.
- Evidence of the 23 January 2001 incident, including the deceased's statement of 24 January 2001 and her amended statement, admitted.
Key Takeaways
- In a circumstantial murder case, evidence of a history of threats, physical violence, and controlling behaviour by an accused towards a deceased victim may be admitted as part of the Crown's case on motive and intent, provided its probative value is not outweighed by the danger of unfair prejudice under the Evidence Act 1995.
- Under s 137 of the Evidence Act 1995, evidence is to be excluded only where the danger of unfair prejudice significantly outweighs probative value; the threshold is not met simply because the evidence reveals prior criminal conduct by the accused.
- Kirby J confirmed the approach in Harriman v The Queen (1989) 167 CLR 590: the fact that evidence discloses criminal behaviour does not automatically warrant exclusion, particularly where the jury will be directed against propensity reasoning.
- Sufficient probative weight attached to the January 2001 incident because it illustrated the accused's reaction to the deceased's involvement with another man, which was directly relevant to motive in a case where circumstantial evidence was central.
- Reliability of statements made by a deceased victim to police can be assessed on the balance of probabilities under s 142 of the Evidence Act 1995, and coherence of the statement together with the giving of evidence by the police officer who took it may support that assessment.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 98, 135, 137, 138, 142
- Crimes Act 1900 (NSW), Pt 10A
Cases
- R v Toki (2000) 116 A Crim R 536
- R v Clark (2001) 123 A Crim R 506
- Garner (1963) 81 WN (Pt 1) (NSW) 120
- Plomp v The Queen (1963) 110 CLR 234
- Wilson v The Queen (1970) 123 CLR 334
- The Queen v Hissey (1973) 6 SASR 280
- R v Serratore (1999) 48 NSWLR 102
- Harriman v The Queen (1989) 167 CLR 590
- R v Beserick (1993) 30 NSWLR 510
- R v Bradley (1989) 41 A Crim R 297
- The Queen v Frawley (1993) 69 A Crim R 208
- Festa v The Queen (2001) 208 CLR 593