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Supreme Court 17 July 2018

R v AKB (No. 5)

[2018] NSWSC 1110

Homicide
EVIDENCE CRIMINAL LAW RELATIONSHIP EVIDENCE HEARSAY EVIDENCE FROM DECEASED WHETHER EVIDENCE HAS PROBATIVE VALUE

Citation: R v AKB (No. 5) [2018] NSWSC 1110
Court: Supreme Court of New South Wales
Date: 17 July 2018
Judge(s): Davies J

Background

The accused stood charged with murder. The Crown sought to lead relationship evidence to establish that the accused had sought to control the deceased and that the relationship had deteriorated over time. The evidence in dispute came from a statement made by a witness, Ms Iskandary, who recounted things the deceased had told her on several occasions between 2007 and later years.

The statement covered a range of matters: an alleged act of violence by the accused against the couple's infant son shortly after birth, a threat allegedly made by the accused that he would kill the deceased if she reported him to police, controlling behaviour directed at the deceased around 2009, and the accused's alleged pressure on the deceased to terminate a later pregnancy.

The Crown did not press one paragraph of the statement during argument. The admissibility of the remaining paragraphs fell to be determined by Davies J, who considered each category of evidence separately.

  • Whether hearsay statements attributed to the deceased had sufficient probative value to be admitted as relationship evidence
  • Whether the probative value of each category of evidence was outweighed by the danger of unfair prejudice to the accused under s 137 of the Evidence Act 1995 (NSW)
  • Whether the passage of time between the events described and the alleged offence reduced the probative value of the evidence to the point of exclusion

Decision

Davies J divided the disputed evidence into three categories and assessed each separately. The first category comprised paragraphs 10 to 12, which described an alleged violent act against the infant son and a threat to kill the deceased if she went to the police. His Honour had previously rejected similar Iran-based evidence in R v AKB (No. 4) [2018] NSWSC 1082 on the basis that its low probative value was outweighed by prejudice under s 137. His Honour considered the paragraphs 10 to 12 material fell into the same category.

Two factors reinforced this conclusion. Evidence from the couple's children and others suggested the accused had a caring relationship with his sons, undermining the isolated incident's relevance. As for the threat to kill, no other evidence in the case supported that the accused had ever made such a threat, and a threat allegedly made nine years before the alleged offence, potentially made in anger, was assessed as highly prejudicial in a murder trial. His Honour excluded paragraphs 10 to 12 in their entirety.

The second category, the controlling behaviour described in the final three sentences of paragraph 13, was admitted. His Honour accepted that this conduct occurred around 2009 but found it was consistent in character with more recent conduct that was already in evidence, namely, the accused obtaining access to the deceased's phone and social media. The evidence was seen as demonstrating a continuity of controlling behaviour, giving it sufficient probative value despite occurring approximately seven years before the alleged offence.

The third category, paragraph 16 concerning pressure to terminate the later pregnancy, was also admitted. Another witness had already given unchallenged evidence to the same effect, and Davies J permitted this evidence on that basis.

Orders Made

• Evidence in paragraphs 10-12 of Ms Iskandary's statement is rejected
• Evidence in paragraph 13 may be adduced
• Evidence in paragraph 16 may be adduced
• Publication restriction removed (26 July 2018)

Key Takeaways

  • Under s 137 of the Evidence Act 1995 (NSW), a court must exclude evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant, and this balancing exercise applies individually to each distinct piece of proposed evidence.
  • Davies J confirmed that significant elapsed time between an alleged incident and the charged offence can reduce probative value to the point where prejudice prevails, particularly where an isolated threat or act of violence is not corroborated by other evidence in the case.
  • Relationship evidence describing a pattern of controlling behaviour retained sufficient probative value where it was consistent in nature with more recent conduct already admitted, even when the specific incidents occurred several years before the alleged offence.
  • Where evidence from one witness duplicates unchallenged evidence already before the court from another witness, that duplication can itself support admissibility of the later evidence.
  • The Supreme Court treated each category of proposed relationship evidence discretely rather than applying a single ruling to the whole statement, reflecting the granular nature of the s 137 balancing exercise.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 137

Cases
- R v AKB (No. 4) [2018] NSWSC 1082