Citation: Regina v Mikel Fajloun; Regina v Raad Fajloun [2007] NSWDC 381
Court: District Court of New South Wales
Date: 5 November 2007
Judge(s): Cogswell SC DCJ
Background
The accused brothers faced serious charges arising from an alleged incident involving one of their wives. The Crown alleged that the two men forced entry into the complainant's unit using an axe, abducted her, drove her to an unoccupied house, and physically assaulted her there. A non-publication order applied to the complainant's name.
The complainant and the accused husband had been married for nearly twenty years and had four children together. In the period leading up to the alleged offending, the complainant had reported her husband to police.
At trial, the Crown sought to tender evidence of prior acts of violence and threatening words directed at the complainant in the week or two before the alleged offence. This evidence was contained in three witness statements (Exhibit VD-A) and a series of photographs of the complainant (Exhibit VD-B). Counsel for the accused husband objected to that evidence.
Legal Issues
- Whether the prior domestic violence evidence was relevant to the charges
- Whether the evidence should be excluded under s 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 evidence should be excluded under s 135 of the Evidence Act 1995 on the basis that its probative value was substantially outweighed by the danger of unfair prejudice (or some other discretionary ground)
- Whether any specific portions of the evidence warranted separate treatment
Decision
The court accepted the Crown's submissions that the prior violence evidence was relevant on two bases: first, it demonstrated a pattern of escalating violence and a deteriorating relationship, which provided context for the alleged offending; and second, it was relevant to motive, showing the complainant's intention to end the relationship and the accused's apparent disposition to use force to prevent that outcome.
The accused's counsel argued that the probative value of the evidence was low because his client conceded there had been a deteriorating relationship and persistent attempts to gain access to the unit. The court rejected that submission. It found that, given the extraordinary seriousness of the alleged conduct, it was of significant probative value for the Crown to establish that the alleged violence was not an isolated incident.
On the s 137 argument, the court found no danger of unfair prejudice. The evidence was not tendered as tendency evidence, and any residual risk on that point would be addressed in the Crown's closing submissions and through jury directions. The court reached the same conclusion under s 135, finding that probative value was not substantially outweighed by any danger of unfair prejudice.
The court did, however, exclude two specific phrases from paragraph 7 of the first statement. Both phrases contained language of a sexual or demeaning nature that the court considered insufficiently connected to the core issues at trial, of comparatively low probative value, and carrying their own form of prejudice. The photographs in Exhibit VD-B were admitted in full, as they were capable of demonstrating pre-existing bruising that could be compared with the complainant's post-incident injuries.
Orders Made
- The evidence in Exhibit VD-A admitted, subject to the exclusion of two specified phrases in paragraph 7 of the first statement dated 11 November 2005
- Exhibit VD-B (photographs) admitted in full
Key Takeaways
- The District Court held that evidence of prior domestic violence in the weeks preceding an alleged kidnapping and assault was relevant both to the context of escalating violence and to the accused's motive.
- A concession by the defence that the relationship had been deteriorating did not, of itself, reduce the probative value of specific prior violence evidence to the point where exclusion under s 137 of the Evidence Act 1995 was warranted.
- Under ss 135 and 137, the court assessed the probative value of the evidence against the danger of unfair prejudice and found the balance favoured admission, particularly given the gravity of the alleged offending.
- Not all parts of a statement stand or fall together: the court severed and excluded two phrases that were of low probative value and carried their own prejudicial character, even while admitting the remainder.
- Photographic evidence of pre-existing injuries was admitted where it could be meaningfully compared with post-incident injuries to assist in establishing the timing and nature of the alleged assault.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 135 (general discretion to exclude evidence where probative value is substantially outweighed by the danger of unfair prejudice)
- Evidence Act 1995 (NSW), s 137 (exclusion of prejudicial evidence in criminal proceedings where probative value is outweighed by the danger of unfair prejudice)
Cases cited: None cited in the judgment.