DPP v Azizi

2 The accused and his wife were married in Afghanistan in 1993. About four years after their marriage they fled to Iran. Ultimately, they migrated to Australia in June 2005. There were five children of the marriage. The youngest was aged 3 months at the time of the deceased's death.

3 The accused was tried and convicted of the murder of his wife in February 2010. That conviction was overturned on appeal to the Court of Appeal[1]. The factual background to the case was set out in the judgment of Bongiorno JA, and it is not necessary for me to repeat it for the purpose of this ruling.

4 It is sufficient to note that it is common ground that on the afternoon of 20 November 2007 the accused man strangled the deceased with her scarf. The evidence of the pathologist was that the deceased's death had resulted in petechial haemorrhages in the inner eye. In addition the deceased's voice box was broken, and there were fractures to the hyoid bone and the thyroid cartilage. The evidence of the pathologist was that the strangulation would have required at least moderate force, and would have taken at least fifteen to thirty seconds.

5 At the first trial the accused gave evidence. He stated that shortly before he strangled his wife, she had pushed him to the ground, got on top of him, and bit in his thigh. He responded by punching her to the face, and then grabbing her scarf. He stated that he did not apply much pressure to the scarf, and that he did not pull on it for long.

6 The evidence given by the accused on the first trial, and the response to the Crown opening filed on his behalf in the present case, make it clear that the principal issues in the case will relate to the accused's intent when he pulled on the scarf, and, secondly, whether the accused was acting in self-defence.

7 The evidence which is the subject of the hearsay notice served on behalf of the prosecution concerns a number of statements which the deceased made, during the period of two or so months before her death, to her sister, Shookaia Abid, to an interpreter, Moni Khaliquy, and to Ms Catherine MacKinnon, the coordinator of Enhanced Maternal and Child Health Services for the City of Casey. The statements, which the prosecution wished to adduce in evidence, are set out in the hearsay notice, which I shall annex to this ruling for the purpose of convenience.

8 The prosecution seeks to lead the evidence, referred to in the hearsay notice, pursuant to s 65(2)(b) of the Evidence Act 2008. Alternatively it seeks to adduce the evidence for a "non hearsay" purpose pursuant to s 66A of the Act, on the basis that it relates to the deceased's state of mind. It was submitted by Ms M Williams SC, on behalf of the prosecution, that the deceased's state of mind is a relevant factor in the case, and in particular, it is relevant for the prosecution to prove that the deceased was fearful of her husband, and thus would have been unlikely to have instigated any physical confrontation with him. In addition it was submitted that the evidence as to her state of mind was relevant to prove that, in the period leading up to her death, the deceased was unhappy with her marriage, and that she was either contemplating or intending to separate from him.

9 The principles relating to s 65(2)(b) are reasonably settled for the purposes of this ruling. In order that the evidence be admissible, it must satisfy two criteria prescribed by that subsection. First, the representation, sought to be adduced by the prosecution, must have been made by the deceased "when or shortly after" the asserted fact (in other words the fact stated in the representation) occurred. Secondly, the representation must have been made in circumstances that make it unlikely that the representation was a fabrication.

10 The Act does not prescribe any particular time period within which a particular representation must be made, in order that it be made "shortly after the asserted fact".

11 In Williams v R[2], the Full Court of the Federal Court, consisting of Whitlam, Madgwick and Weinberg JJ, were concerned with a statement which was made five days after the incident. The Full Court, in that case, held that such a time period was not "shortly after" the incident, and therefore the statement was inadmissible. Their Honours considered that the rationale for the exception to the hearsay rule contained in s 65(2)(b) was not only directed to ensuring that the events in question would be accurately recalled by the person who made the representation, but that, rather, the provision was intended to ensure that it was unlikely that the representation was a fabrication. Their Honours stated:

"One condition of this is that the statements be made spontaneously during ('when') or under the approximate pressure of ('shortly after') the occurrence of the asserted fact."[3]

12 Of course, in order that the evidence be admissible, it is not sufficient that it fulfil the criteria specified in s 65(2)(b). It must be also relevant to an issue in the case, and otherwise admissible as such. That observation is important in this case, because the prosecution has not, in this trial, served a notice, under s 97(1)(a) of the Act, that it intends to rely on any of the evidence to prove a tendency of the accused to act in a particular manner towards the deceased.

13 On the other hand, it is well recognised that evidence as to previous incidents occurring in a relationship between the deceased and the accused is admissible, where the accused and the deceased have been living together for a substantial period of time before the events in question, and that evidence is relevant to issues such as the motive or intent of the accused, or the state of mind of the deceased.[4]

14 In the present case, it is clear, and indeed not in dispute, that the deceased's state of mind in the period leading up to her death is a relevant fact. In particular it would be relevant for the prosecution to establish that, during that period, she was sufficiently fearful of the accused as to have been unlikely to have instigated a physical confrontation with him. Further in my view it would be admissible to prove that during the period leading to her death the relationship between the accused and the deceased was strained and hostile, so much so that the deceased was contemplating or intending to leave him. That fact would provide a relevant context to the events which occurred on 20 November 2007. In addition, it would be relevant for the prosecution to prove, by admissible evidence, that the accused man himself was hostile to, or had a tense relationship with, the deceased. Having said that, it would not be admissible, in the absence of a notice under s 97(2) of the Evidence Act, for the prosecution to adduce evidence directed to establishing that the accused was prone to treating the deceased violently in times of disagreement with her.

15 Bearing those principles in mind, I turn to the particular pieces of evidence which the prosecution intends to adduce, and which are set out in the hearsay notice. For the sake of brevity, I shall not set out those statements, but, rather, shall refer to them by reference to the paragraph numbers in the attached notice of hearsay evidence.

16 The Court of Appeal has ruled that the statement, made by the deceased to her sister, one month before her death, is not admissible under s 65(2)(b) because there is no evidence as to when the facts, stated by the deceased to her sister, took place.[5] The Court held that the evidence would be admissible as to the state of mind of the deceased with respect to her relationship with the accused at the time at which the words were spoken.[6]

17 Ms O'Brien, who appeared with Mr McMahon, submitted that I should exclude the evidence, under s 135 or s 137 of the Evidence Act, because of the potential prejudicial value of the evidence.

18 The evidence in question is contained in the statement of Shookaia Abid at pages 33 to 34 of the depositions. As set out in that part of the witness statement, the Court of Appeal has noted, the evidence is relevant as disclosing the state of mind of the deceased in relation to her marriage to the accused. In particular it reveals that at that time the deceased was seriously contemplating asking the accused for a divorce if he did not change his ways. In that way the evidence is of important probative value. The prejudicial part of the evidence relates to the statement by the deceased to Ms Abid that the accused had been hitting her. That aspect of the evidence is incapable of being severed from the rest of the passage of the witness's evidence, without affecting the meaning of it. I do not consider that the prejudicial content, of that aspect of the statement, does outweigh the probative value of the evidence. I shall therefore admit it as being relevant to the state of mind of the deceased in relation to her marriage and in relation to the accused. The prosecution will, of course, take care to ensure that it is not misused, and in particular, that it is not relied upon as evidence of the truth of what the accused stated to her sister.

19 Ms Williams, in the course of submissions, conceded that the prosecution would not call evidence of the last sentence in paragraph 4.2, in which the deceased had told her sister that she had been beaten so many times she needed to take medication. With that deletion, the evidence is clearly relevant to the deceased's state of mind about her marriage. Ms O'Brien submitted that the statement by the deceased "this is Australia not Afghanistan" would be prejudicial to the accused. I do not consider that that is so. It is the experience of the courts that juries do not act with prejudice, and indeed they are instructed, at the commencement of the trial, and in final directions, that they must not be guided by such emotional considerations. I therefore consider that the evidence in paragraph 4.2 of the notice (excluding the last sentence on it) is admissible under s 66A of the Evidence Act, as being relevant to the state of mind of the deceased one week before her death.

20 In the course of submissions Ms Williams conceded that the reference to the new telephone number, in the first sentence of paragraph 4.3, is irrelevant, and would not be the subject of evidence.

21 The evidence summarised in paragraph 4.3 (with that omission) is clearly relevant to establish the fact that the deceased was fearful of the accused a mere three days before her death. That fact is of significant probative importance, since it bears on the probabilities as to whether the deceased, on 20 November 2007, would have instigated a physical confrontation with the accused. Ms O'Brien objected to the evidence contained in the last sentence, namely that the deceased had stated that she did not trust the accused and was worried he wanted to do something to her. She submitted that that statement, if admitted, would be of substantial prejudicial value, which would outweigh the probative value of the evidence.

22 In my view the evidence is admissible. In admitting it, I would direct the jury that they should not infer from the evidence, to which Ms O'Brien objected, that the accused had threatened or indicated that he would do anything to the deceased. Such an inference, the jury will be directed, would be a matter of speculation and not proper reasoning. In my view such a direction would be sufficient to offset the prejudice which might otherwise arise from the introduction of that evidence. On the other hand, as I have indicated, the evidence is of important probative value, bearing on the state of mind of the deceased only three days before her death. Accordingly, the evidence is admissible under s 66A of the Evidence Act, as directed to the state of mind of the deceased.

23 Initially Ms O'Brien objected to the evidence of Moni Khaliquy, because, she submitted, there are a number of matters which indicated that she would not be a reliable evidence. However, in the course of further submissions, Ms O'Brien accepted that, ordinarily, for the purposes of ss 135 and 137 of the Evidence Act, the court does not, in determining the probative value of the evidence, make an assessment of the credibility or reliability of the evidence itself.[7]

24 I am not satisfied that the representations made by the deceased to Ms Khaliquy, as summarised in paragraph 5.2, were made "shortly after" the asserted fact for the purposes of s 65(2)(b) of the Evidence Act. In particular, at page 41 of the depositions, Ms Khaliquy states that the deceased told her that her husband "had" mentally and physically abused her. There is no temporal connection between that asserted fact and the date on which the representation was made, namely 13 September 2007. In addition, the representation by the deceased to Ms Khaliquy that her husband had made a threat to her also, I consider, lacks sufficient temporal connection to come within s 65(2)(b) of the Act. In her second statement Ms Khaliquy said that the deceased did not tell her when the threat was made but that Ms Khaliquy "believed" it was fairly recent. It would seem that any such belief was not based on what the deceased had told her. Accordingly the asserted fact (the threat) does not have sufficient temporal connection with the date of the representation by the deceased to Ms Khaliquy (13 September) to come within s 65(2)(b). The evidence would, of course be relevant to the deceased's state of mind. However, on the other hand, it records a threat made at least two months before her death. Further, it would be particularly difficult to give an appropriate direction to the jury that they could only confine the use of that evidence to reflecting on the deceased's state of mind. The threat, stated by the deceased to the witness, was quite explicit, namely that the accused would "kill" her. Clearly, if that evidence were admitted, it would be highly prejudicial. It is hearsay evidence. The accused's counsel could not cross-examine the maker of it. In those circumstances the prejudicial value of the evidence would outweigh its probative effect, and I therefore would exclude the evidence in paragraph 5.2 as inadmissible.

25 Ms Williams conceded that the three representations, contained in paragraph 5.3, would only be admissible under s 66A of the Evidence Act. In particular she accepted (correctly) that there was not sufficient temporal connection between the second representation (that the deceased's husband abused her) and the asserted fact, for that representation to come within s 65(2)(b). At best the evidence is only admissible as to the deceased's state of mind. Again it would be difficult to direct the jury that they must confine their consideration of that evidence as reflecting only on the deceased's state of mind. Further, it is not necessary for the prosecution to adduce that evidence, in order to be able to put evidence before the jury as to the deceased's state of mind, since that is established by the third representation contained in paragraph 5.3 (that the deceased was scared of the accused). In my view the first and third representations are admissible, under s 66A, as relating to the deceased's then state of mind. I rule that the second representation is inadmissible.

26 Ms O'Brien objected to the first and fourth statements contained in paragraph 5.4.

27 The first representation does not appear in the statement of Khaliquy contained in the depositions. In particular there is no evidence as to the temporal connection between the asserted fact and the date of making of the representation. It is therefore not admissible under s 65(2)(b). In light of the third representation, the first representation adds little to the probative value of the conversation which Ms Khaliquy will depose. I therefore rule that the first representation is inadmissible.

28 The evidence of Ms MacKinnon, in combination with the evidence of Ms Khaliquy, indicates that the fourth representation related to an incident which occurred between 1 November and 7 November (the date upon which the deceased spoke to Ms Khaliquy and Ms MacKinnon). It is true that the deceased had stated that after the incident she had locked herself in her room for four days. However the representation was not made by the deceased proximate to the time at which she had left her room. Rather, it was made when Ms. Khaliquy and Ms. MacKinnon visited her at her home. In my view it lacks the appropriate spontaneity to bring it within s 65(2)(b), and it is therefore not admissible under that section. The representation is prejudicial to the accused. I do not consider that its probative value (as relating to the deceased's state of mind) would outweigh that prejudice and I shall therefore exclude it.

29 Thus I shall exclude the first and fourth representations in paragraph 5.4. The second and third representations were not objected to, and are relevant to the deceased's state of mind.

30 Ms O'Brien objected to the second, third, fifth and sixth representations. Ms Williams conceded that the third representation should not be admitted into evidence, and that the aspect of the fifth representation, to which Ms O'Brien objected (namely that the accused had said that the deceased was her slave) should be excluded. Ms O'Brien objected to the second representation because it described to the person there referred to (Maghita) as a family violence worker. Ms Williams accepted that the reference to Ms Maghita as a family violence worker should be excluded.

31 Thus the only representation now in contention is the sixth representation, namely that the deceased was scared that if she lodged an intervention order it would make her husband more angry with her. That evidence is clearly relevant as to the deceased's state of mind, pursuant to s 66A of the Evidence Act. In my view any prejudicial value of that evidence would be relatively slight, and would be substantially outweighed by the evidence as probative value. Thus the sixth representation is admissible.

32 In my view the evidence in paragraph 6.1 is clearly admissible, relating to the accused's then emotional state. As indicated in the course of submissions, the admissibility of the evidence may need to be reconsidered, if the prosecution seeks to call, in relation to the events of 1 November 2007, further evidence which has not, as yet, been foreshadowed.

33 Ms O'Brien objected to the fourth, fifth and sixth representations in paragraph 6.2. Ms Williams conceded that the fourth and fifth representations should be excluded. Ms O'Brien objected to the sixth representation, pursuant to ss 135 and 137 of the Act, on the basis that the evidence was prejudicial. In my view the evidence is not prejudicial, and if it has any prejudicial potential, it is outweighed by its probative value, namely, as indicating that the accused, on 7 November, was minded to leave the deceased if she could.

34 Ms O'Brien only objected to the second representation contained in paragraph 6.3. Ms Williams conceded that that representation should be excluded.

35 For the foregoing reasons I have reached the following conclusions:

(1) The evidence of Shookaia Abid, set out in paragraph 4.1, 4.2 (excluding the last sentence) and 4.3 (excluding the reference to the new telephone number) of the hearsay notice are admissible, under s 66A of the Evidence Act, as being relevant to the state of mind of the deceased. They are not relevant to prove the truth of any of the facts asserted by the deceased to Ms Abid in those conversations.

(2) I exclude the evidence in paragraph 5.2 of the hearsay notice. It is not admissible under s 65(2)(b) of the Act. Insofar as it may relate to the deceased's state of mind, its prejudicial effect outweighs any probative value of the evidence.

(3) The first and third representations, contained in paragraph 5.3 of the hearsay notice, are admissible under s 66A of the Evidence Act, as relating to the deceased's state of mind. The second representation is excluded. It is not admissible under s 65(2)(b) of the Act. Its prejudicial effect outweighs any probative value of that representation.

(4) The second and third representations in paragraph 5.4 are admissible as being relevant to the deceased's state of mind under s 66A of the Evidence Act. I exclude the first and fourth representations. They are not admissible under s 65(2)(b) of the Evidence Act. The prejudicial effect of each representation outweighs it probative value.

(5) In relation to paragraph 5.5 of the hearsay notice: the first representation, the second representation (omitting reference to the family violence worker), the fourth representation, the fifth representation (excluding that the accused said that the deceased was the slave), and the sixth representation are all admissible. The first, second (with the appropriate deletion), fourth and fifth representations are admissible under s 65(2)(b). The sixth representation is admissible under s 66A of the Evidence Act.

(6) The representation in paragraph 6.1 of the hearsay notice is admissible as to the deceased's state of mind (s 66A).

(7) The first, second, third and sixth representations contained in paragraph 6.2 are admissible. The sixth representation is relevant to the deceased's state of mind (s 66A). The fourth and fifth representations are not admissible.

(8) All the representations (except the second representation) contained in paragraph 6.3 are admissible. The second representation is inadmissible.

[1] Azizi v The Queen [2012] VSCA 205.

[2] [2000] FCA 1868.

[4] See R v Anderson [2000] VSCA 16; (2000) 1 VR 1, 12-14 [30]-[34] (Winneke P); Wilson v R [1970] HCA 17; (1970) 123 CLR 334; Frawley v R (1993) 69 A Crim R 208, 220 (Gleeson CJ).

[5] Azizi v The Queen [2012] VSCA 205, [47].

[7] R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228, [49]-[68] (Spigelman J).