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Supreme Court 11 November 2004

R v Hamoui [No 1]

[2005] NSWSC 99

HomicideDomestic & family violence
CRIMINAL LAW JURY TRIAL MURDER ADMISSIBILITY OF RELATIONSHIP EVIDENCE DISCRETION

Citation: R v Hamoui [No 1] [2005] NSWSC 99
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 Ms Julie Haklane, whose body was found in her parked car in Fairfield on 28 June 2001. She had been strangled. The accused and the deceased had been in a romantic relationship for approximately five years before her death, a relationship that had deteriorated into repeated episodes of alleged physical and verbal abuse, threats to kill, and police complaints.

Before the jury was empanelled, four preliminary evidentiary issues were argued. This judgment addresses two of them: a general objection to the admissibility of relationship evidence the Crown proposed to lead, and a specific objection to evidence concerning a particular incident on 23 January 2001.

The Crown's case was circumstantial. The relationship evidence formed a central part of that case, and the defence argued it should be excluded or, at minimum, restricted under the discretionary exclusion provisions of the Evidence Act 1995.

  • Whether evidence of the accused's prior conduct toward the deceased, including threats, physical assaults, and police complaints, was relevant and admissible as part of the Crown's circumstantial case
  • Whether that relationship evidence should nonetheless be excluded under ss 135 or 137 of the Evidence Act 1995, on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused
  • Whether the specific evidence concerning the incident of 23 January 2001, which involved the accused attending the deceased's vehicle while armed, should be excluded as a matter of discretion under ss 135 or 137
  • Whether the Crown could rely on the coincidence rule under s 98 of the Evidence Act 1995 in relation to the position of the car seat observed during both the January incident and the circumstances of the deceased's death

Decision

Kirby J ruled that, as a general matter, the relationship evidence was relevant and admissible as part of the Crown's circumstantial case. Evidence from the deceased's family about threats to kill, possessive behaviour, physical violence, and the accused's conduct in the days immediately before the deceased went missing all bore directly on the question of motive and the nature of the relationship. Particular phrases and passages in witness statements were subject to separate objection under s 137, and some were excluded by agreement between counsel.

On the specific incident of 23 January 2001, the deceased had attended Fairfield Police Station and provided a statement describing an encounter in which the accused had attended her vehicle armed with a rifle, made threats, and was said to have threatened to take his own life. His Honour found the statements made by the deceased on 24 January 2001 and her subsequent amended statement were sufficiently credible to be admitted. The deceased had recently received insulin, had been given coffee, and was described by the attending detective as emotional but coherent and willing to proceed.

Applying s 137, Kirby J found that the probative value of the January 2001 evidence significantly outweighed the danger of unfair prejudice. He noted that the deceased did not die by a firearm but by strangulation, reducing the risk that the jury would use the evidence improperly. The jury would receive a direction against propensity reasoning, and the fact that both the January incident and the death involved the deceased's car was simply a common feature of the episodes rather than a source of unfair prejudice.

On the coincidence rule under s 98, his Honour ruled the Crown could not rely on that provision in respect of the positioning of the car seat. However, the seat position remained relevant and admissible evidence, just not as coincidence reasoning under s 98.

Orders Made

  • Relationship evidence admitted generally as part of the Crown's circumstantial case, subject to specific objections to particular passages being dealt with before individual witnesses gave evidence
  • Evidence concerning the incident of 23 January 2001 admitted, including both the original and amended statements of the deceased
  • Crown not permitted to rely on the coincidence rule (s 98 Evidence Act 1995) in respect of the car seat position, though that evidence remained admissible
  • No ruling was made in this judgment on the third issue (the Detention Warrant); that was reserved for a separate judgment

Key Takeaways

  • Relationship evidence, including prior threats, physical violence, and police complaints by a deceased victim, is capable of being relevant and admissible in a murder trial as part of the Crown's circumstantial case, subject to the court's discretion to exclude particular passages under ss 135 and 137 of the Evidence Act 1995.
  • Under s 137, the critical question is whether probative value is substantially outweighed by the danger of unfair prejudice; here, the court found the probative value of the prior-violence evidence clearly prevailed, particularly given the nature of the charge and the availability of jury directions against propensity reasoning.
  • Evidence that reveals prior criminal conduct by the accused is not automatically excluded; as confirmed by reference to Harriman v The Queen, such evidence may be admitted where its probative value justifies admission and appropriate jury directions can mitigate the risk of impermissible use.
  • The coincidence rule in s 98 of the Evidence Act 1995 has a defined operation: a shared feature between two incidents does not necessarily engage that rule, even where it may remain relevant and admissible on other grounds.
  • Statements made by a deceased victim to police in the days before the alleged offence may satisfy the threshold of proof on the balance of probabilities under s 142 of the Evidence Act 1995, provided there is sufficient basis to accept the reliability of the circumstances in which the statements were made.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), Pt 10A (Detention Warrants)
- Evidence Act 1995 (NSW), ss 98 (coincidence rule), 135, 137, 138, 142

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