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District Court 14 June 2024

R v Khoshdil

[2024] NSWDC 257

Sexual offencesAssault & violenceDomestic & family violence

Citation: R v Khoshdil [2024] NSWDC 257
Court: District Court of NSW
Date: 14 June 2024
Judge: S Hanley SC DCJ

Background

The accused was charged with one count of sexual intercourse without consent under s 61I of the Crimes Act 1900. The accused and the complainant were husband and wife, having married in Afghanistan in approximately 2014 before arriving in Australia as refugees on 24 June 2021. They settled first in South Australia, then later that year in Blacktown, NSW.

The Crown initially pursued multiple counts and sought to rely on tendency evidence, but subsequently reformulated its approach. It filed a single-count ex officio indictment, abandoned the tendency notice, and instead sought to lead what it characterised as relationship and context evidence. That evidence included allegations of physical violence, sexual coercion, psychological abuse, and controlling behaviour throughout the relationship.

The defence challenged the admissibility of that proposed evidence, primarily on the grounds that it was unfairly prejudicial, lacked sufficient proximity to the charged offence, and would amount to an improper mini-trial.

Legal Issues

  • Whether evidence of the accused's alleged pattern of physical, sexual, and psychological abuse and controlling behaviour throughout the relationship was admissible as context or relationship evidence
  • Whether that evidence was admissible under ss 61HJ(1)(e), (f), and (h) of the Crimes Act 1900 as proof of coercion and an ongoing pattern of behaviour vitiating consent
  • Whether s 294CB(3) of the Criminal Procedure Act 1986 barred the evidence, and if the exception in s 294CB(4)(b) applied
  • Whether the evidence was tendency evidence or, alternatively, evidence of the accused's continuing state of mind
  • Whether the probative value of the evidence was outweighed by unfair prejudice under s 137 of the Evidence Act 1995
  • Whether adequate jury directions could address any prejudicial effect

Decision

Issue 1: Admissibility as context and relationship evidence

The court was satisfied that the relationship evidence was admissible to place the charged conduct in its proper context. Without it, the complainant's allegations would appear to have arisen out of the blue within an otherwise harmonious marriage, rendering them implausible to a jury (at [20]-[21]). The evidence was relevant to two central facts in issue: whether the complainant consented, and whether the accused had knowledge of her lack of consent or was reckless as to it (at [7]-[9]).

Issue 2: Admissibility under ss 61HJ(1)(e), (f), and (h) of the Crimes Act

The court found the evidence was sufficiently particularised under those provisions, which contemplate proof of an ongoing pattern of coercive and controlling behaviour capable of vitiating consent (at [33]-[34]). The court also held that when ss 61HJ(1)(e) and (f) are read together with s 294CB(4)(b) of the Criminal Procedure Act, the proximity requirement in s 294CB(3) is removed in circumstances where the alleged coercion operated throughout the relationship (at [46]). Even if the proximity argument had succeeded, the court was satisfied the evidence would remain admissible under ss 61HJ(1)(e) and (f) in any event (at [47]).

Issue 3: Tendency evidence or state of mind evidence

The court rejected the characterisation of the evidence as tendency evidence. It held the evidence went to the accused's continuing state of mind, specifically his knowledge or disregard of the complainant's lack of consent, and was therefore admissible on that distinct basis (at [49]). The evidence also explained the complainant's apparent compliance during the alleged incident by reference to the broader pattern of control and submission within the relationship (at [45]).

Issue 4: Unfair prejudice and jury directions

The court accepted that the evidence was inherently prejudicial to the accused, but was not satisfied it was unfairly prejudicial within the meaning of s 137 of the Evidence Act (at [53]). The defence submission that no adequate jury direction could remedy the prejudice was rejected. The court found that directions on the permissible use of relationship evidence are regularly given in this court and that juries can be expected to comply with them (at [54]-[55]). The court also rejected the submission that admission of the evidence would create a mini-trial, noting that similar evidentiary burdens arise in tendency and coincidence evidence cases (at [50]).

Issue 5: Specific items of evidence excluded

The court excluded evidence of alleged audio recordings made by the complainant of the accused demanding sexual intercourse. The court found that evidence was incapable of corroboration and therefore potentially unfairly prejudicial (at [60]). A number of other specific items identified in the defence's annexure were also excluded as irrelevant or insufficiently probative.

Orders Made

  • Relationship and context evidence is admissible other than as identified in the judgment and the attached schedule extracted from the defence's Annexure D
  • Trial date of 24 June 2024 confirmed

Key Takeaways

  • The District Court confirmed that relationship and context evidence, including evidence of physical violence, sexual coercion, and controlling behaviour throughout a marriage, may be admissible in a marital sexual assault trial to contextualise the charged conduct and address jury assumptions about consent (at [19]-[21]).

  • Under ss 61HJ(1)(e) and (f) of the Crimes Act 1900, evidence of an ongoing pattern of coercive and controlling behaviour can vitiate consent and may be admitted even where it would otherwise face restriction under s 294CB(3) of the Criminal Procedure Act 1986, provided the s 294CB(4)(b) exception applies (at [34]-[38], [46]).

  • Evidence of an accused's continuing state of mind toward a complainant, including knowledge or disregard of her lack of consent, is analytically distinct from tendency evidence and does not attract the ss 97 and 101 Evidence Act framework (at [49]).

  • Inherent prejudice from relationship evidence does not automatically satisfy the unfair prejudice threshold under s 137 of the Evidence Act; the court must assess whether the jury would use the evidence improperly in some unfair way rather than simply that the evidence damages the accused's case (at [53]-[57]).

  • Specific items of proposed relationship evidence were excluded where they were incapable of corroboration or lacked sufficient relevance to the charged conduct, illustrating that admissibility determinations of this kind are made item by item rather than in bulk (at [59]-[61]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 , ss 61I, 61HJ(1)(h), 61HJ(1)(e), 61HJ(1)(f)
- Evidence Act 1995 , ss 97 , 101 , 137
- Criminal Procedure Act 1986 , ss 294CB (3) , 294CB(4)(b)

Cases
- HML v R [2008] HCA 16
- R v Merrick (No 2) [2016] NSWSC 164
- R (Cth) v Seguel [2024] NSWCCA 37
- R v Latu [2018] NSWSC 1659
- Elomar v R
- Hasan v R
- Cheikho v R;
- Jamal v R [2014] NSWCCA 303
- R v Allen [2020] NSWCCA 173