Citation: R v Nour (No 2) [2017] NSWDC 391
Court: District Court of New South Wales
Date: 29 June 2017
Judge(s): Neilson DCJ
Background
The accused was charged with offences arising from an alleged incident on 3 January 2015 involving his former de facto partner. The relationship had lasted approximately three years and had produced a child born around July 2014, just five months before the alleged crimes.
The Crown sought to lead a range of pre-trial evidence, including tendency evidence, context or relationship evidence, portions of two 000 call transcripts, and an alleged admission made by the accused at Liverpool Police Station following his arrest.
These pre-trial rulings addressed which parts of that evidence could be placed before the jury and on what basis.
Legal Issues
- Whether evidence of prior alleged acts of violence and controlling behaviour by the accused was admissible as tendency evidence
- Whether, if not admissible as tendency evidence, that material could be admitted as context or relationship evidence
- Which portions of the two 000 call transcripts were admissible
- Whether an alleged admission made at Liverpool Police Station was admissible
Decision
Issue 1: Tendency Evidence
The court found that the complainant's evidence of prior physical violence was uncorroborated by any independent source, including complaints to relatives, medical records, or photographs (at [10]). For that reason, the court did not admit the prior assault evidence as tendency evidence.
The evidence of the accused interfering with the complainant's contact with her family was better supported. Text messages from the accused to the complainant's mother provided some corroboration for that aspect of the complainant's account (at [11]). However, the bulk of the remaining text messages were found to do no more than hurl abuse and, even if arguably threatening, their probative value was outweighed by the prejudicial effect of placing them before the jury (at [16]).
Issue 2: Context or Relationship Evidence
The court admitted evidence of the accused's prior alleged acts of violence against the complainant as context evidence rather than tendency evidence (at [23]). The court reasoned that without this background, a jury hearing that a man with a three-year relationship and a five-month-old child suddenly committed the alleged offences would find the evidence improbable and lacking explanation (at [20]-[21]).
The court directed that an appropriate jury instruction must be given both at the time of admission and in the summing-up, making clear that the evidence was not to be used as proof of any tendency or propensity on the accused's part to commit offences of this nature (at [23]).
Issue 3: 000 Call Transcripts
Several portions of the first 000 call transcript were ruled on individually. The accused's use of two names was admitted because the case could not realistically be presented without the jury knowing he was also known as Mohammed Bohsali (at [29]). A bracketed, unclear portion of the answer to question 26 was excluded as it could be misinterpreted (at [30]). Questions 28 and 29, concerning weapons and apprehended violence orders, were admitted: they were standard operator questions and the answers given favoured the accused (at [31]). Portions of the second 000 call that were objected to were also considered, though the specific rulings on those passages are not separately detailed in the judgment beyond the identification of the contested material.
Certain excisions were also made to exclude references to illicit drug use, consistent with the Crown's own concession that this material should not be led (at [4], [7]).
Issue 4: Alleged Admission at Liverpool Police Station
The court deferred ruling on the admissibility of the alleged admission recorded by Constable Dib. The ruling was postponed until after the complainant gave her evidence, on the basis that the need to resolve the question might be affected by whether it was common ground that some incident had occurred (at [34]).
Orders Made
Various rulings on evidence as set out in the judgment.
Key Takeaways
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Evidence of prior acts of domestic violence that lacks independent corroboration may still be admitted as context or relationship evidence rather than tendency evidence, where its absence would leave a jury without a rational framework for understanding the alleged offending (at [20]-[23]).
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Where context evidence of prior violence is admitted, the trial court is obliged to direct the jury that the evidence cannot be used as proof of a tendency or propensity to commit criminal acts (at [23]).
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The District Court confirmed that credibility and reliability of tendency or context evidence are matters for the jury, not for the trial judge to resolve at the admissibility stage (at [24]).
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Portions of 000 call transcripts that are unclear or could be misinterpreted are susceptible to exclusion, while standard operator questions with answers that do not prejudice an accused are likely to be admitted (at [30]-[31]).
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A ruling on the admissibility of an alleged station-house admission may properly be deferred until after key witness evidence is heard, particularly where the relevance of the dispute may depend on what is ultimately in contest at trial (at [34]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1977
Cases
- Bryant v Regina [2011] NSWCCA 26
- Hoch v The Queen [1988] HCA 50
- Hughes v The Queen [2017] HCA 20
- IMM v The Queen [2016] HCA 14
- Regina v TD [2013] NSWCCA 337
- Roach v The Queen [2011] HCA 12