R v Atroushi

• 20 -IN THE COURT OF CRIMINAL APPEAL 60848/98 GILES JA HOWIE J CARRUTHERS AJ Friday 12 October 2001 Regina v Safar Atroushi

1 GILES JA: I agree with Carruthers AJ. 2 HOWIE J: I agree with Carruthers AJ. 3 CARRUTHERS AJ: Safar Atroushi appeals against his convictions at the Liverpool District Court on 3 September 1998. The appellant was arraigned before his Honour Judge O'Reilly QC and a jury of 12 at the Liverpool District Court on 31 August 1998 upon an indictment containing 3 counts. The first count charged that between 25 January and 29 January 1998 at Liverpool, the appellant did stalk Shekurd Atroushi with the intention of causing her to fear personal safety: see s 562AB of the Crimes Act 1900 (hereinafter "the Act"). This offence is commonly referred to as stalking. 4 The second count charged that the appellant, on 28 January 1998 at Liverpool, did maliciously wound Shiwan Atroushi: see s 35 of the Act. 5 The third count charged that on 28 January 1998 at Liverpool the appellant did possess a loaded firearm, namely a rifle, in a public place: see s 93G(1)(a)(i) of the Act. 6 The appellant pleaded not guilty to each count. On 3 September 1998 the jury returned verdicts of guilty on the first and third counts, and a verdict of not guilty on the second count. On 15 December 1998 the appellant was sentenced on each of the first and third counts to a minimum of 3 years imprisonment, to commence on 28 January 1998 and to expire on 27 January 2001, with an additional term of 1 year, to commence on 28 January 2001 and to expire on 27 January 2002. 7 This Court has been provided with a lengthy explanation of the delays which have been occasioned, through no fault of the administration of the Court, in the progression of the appeal in this matter. It is sufficient to say that difficulties have arisen with regard to the appellant's legal representation, and nothing can be achieved by a recitation of the full detail of the reasons for the delay. The appellant was duly released to parole on 27 January 2001 and is presently at liberty. The appellant does not seek leave to appeal against sentence, in the event that his conviction appeal fails. 8 The appellant was born of Kurdish parents on 1 July 1964 in a village in Iraq. He was a member of a large and poor family. Nevertheless, he managed to matriculate and obtain the degree of Bachelor of Civil Engineering in 1986. 9 He is the nephew of Mejid Atroushi, who is the father of Shekurd (the complainant in the stalking count) and Shiwan, who was alleged by the Crown to be the victim in the second count. Mejid migrated to Australia from Iraq in 1991 accompanied by his wife and children, including Shekurd and Shiwan. In 1993 Mejid sponsored the appellant, as his nephew, to come to Australia. The appellant was in a refugee camp in Turkey at the time. The appellant arrived in Australia in January 1993 and went to live with Mejid, Shekurd, Shiwan and other members of the Atroushi family in their unit in Collimore Ave Liverpool. He lived at this address for approximately 40 days. 10 Soon after the appellant moved out of the Collimore Ave unit, he approached Mejid and asked if he could marry Shekurd. Mejid told the appellant that he would consent to the marriage if Shekurd agreed. Mejid then left Australia, and travelled to Iraq shortly thereafter. Up until this time there had never been any romantic relationship between Shekurd and the appellant. In fact, Shekurd did not wish to marry the appellant and informed Mejid accordingly. 11 On 15 December 1995 Shekurd married Mohamad Doskey and they thereafter lived in Atkinson Street, Liverpool. 12 For reasons to which I shall shortly refer, it was necessary for Shekurd, Shiwan and Mejid to take out an apprehended violence order against the appellant, for a period of 3 years, the relevant conditions being not to assault, intimidate, threaten, molest, harass or otherwise interfere with the persons in need of protection. This order was not served, however, until 7 April 1995 because until that date the police could not apparently locate the appellant. 13 Between 25 and 29 January 1998 Shekurd observed the appellant on a number of occasions, in a motor vehicle (of which the windows were opaque) outside the Atkinson Street unit. On occasions she also observed him to leave the vehicle and look around the area, and then return to the motor vehicle. 14 At about 10am on about 28 January, she observed a confrontation between the appellant and Shiwan outside her home, whilst the appellant was armed with a knife. Shekurd then rang the police, who arrived and arrested both men. A search of the appellant's motor vehicle by police officers revealed a loaded rifle with a telescopic sight, and ammunition, in the boot of the car. The police officers also found 5 matching bullets in the jacket being worn by the appellant. The appellant denied that the jacket he was wearing was his own, and further denied that there was a gun in the vehicle. 15 The magazine fitted to the weapon contained 5 bullets. There was also a live cartridge in the breach. 16 Before I turn to the first two grounds of appeal which may be dealt with compendiously, it is necessary to note the specific terms of s 562AB: - 562AB Stalking or intimidation with intent to cause fear of physical or mental harm (1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is liable to imprisonment for 5 years, or to a fine of 50 penalty units, or both. (2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship. (3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. (4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.

17 One immediately notes that the Crown is required to establish that the accused had the intention of causing the other person (in this case Shekurd) to feel fear or physical or mental harm. Further, a person intends to case fear or physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. Thus the state of mind of the accused at the relevant time is an important element in the Crown case. 18 It is apparent that the learned Crown prosecutor had informed Mr Turnbull of counsel (who appeared for the appellant), prior to the commencement of the trial, that the Crown intended to lead evidence from Mejid, Shekurd and Shiwan of events between 1993 and the critical dates in 1998 of conduct by the accused and threats by him to members of the Atroushi family, relevant to his relationship with Shekurd and the retribution he would seek if she declined to marry him. 19 Mr Turnbull was provided with copies of statements by these three persons, to indicate, broadly, the material which the Crown intended to lead as to the events between 1993 and 1998, to which I shall refer, for the sake of convenience, as the relationship evidence. 20 After the jury had been empanelled, his Honour was requested by both counsel to give a ruling on the admissibility of the relationship evidence which the Crown proposed to lead. 21 Mr Turnbull objected to the relationship evidence because it was too distant in time from the asserted conduct of the appellant during the critical period, ie between 25 and 29 January 1998. He submitted that the evidence should be confined to the appellant's conduct on those specific days. He submitted that "what stalking deals with…is an ongoing present circumstance. … The use of the present tense in relation to following, watching or frequenting connotes just that, a series of temporally linked instances which are relatively contemporaneous with the apprehension of the accused in relation to it." 22 Mr Turnbull did concede, however, that the evidence of the making of the apprehended violence order was relevant. 23 His Honour had before him statements from Mejid (3 February 1998), Shekurd (28 January 1998) and Shiwan (28 January 1998, 25 February 1996 and 9 January 1995). These statements outlined the nature of the relationship evidence, albeit in some paragraphs the material was not in an admissible form. 24 It is only necessary in order to understand his Honour's ruling to note paragraphs 5-9 of Mejid's statement, which are in the following form: - "5. Safer (sic) lived at my house 5/25 Collimore Avenue for 40 days after which he moved out on his own living not far from my house. During the time Safer was living with us, I arranged for all his Social Benefit needs. 6. Safer kept in touch, coming over [to] our house regularly and having coffee or tea. A couple of months after Safer moved out of my house, he approached me in the street and said, 'I wish to marry Shekurd.' I said, 'I have no problem with that providing Shekurd agrees, I'll ask her.' He accepted and went on his way. 7. That evening I spoke to my daughter Shekurd and told her about Safer's marriage proposal and she declined. A week later I travelled to Iraq. Safer's parents approached me with the same proposal of marriage and I gave them the same answer, but I did not tell them that Shekurd declined that proposal. I simply told them that I would let her know and she would decide. 8. Eight months later, I returned to Australia and my daughter told me about Safer's advances. Safer continued to visit us and I eventually told him to cut his ties with us because my daughter did not wish to marry him and did not appreciate his advances. 9. From then on, he began ringing my house and at times I answered and he would make threats against (sic) saying, 'I have to marry Shekurd and if she refuses I will kill her, if anyone marries her (sic) will die and who ever stands in my way (sic) will kill him' I remember him making the same threat twice to me on the telephone. On many occasions, Safer confronted me in the streets making the same threats. The Police were involved in (sic) twice. I even took out a restraining order to stop Safer from approaching me and my family." 25 Prior to the Crown prosecutor opening to the jury, his Honour gave the following concise ruling: - "I will permit material such as paragraph 9 of Mejid Atroushi's statement to be adduced in evidence as being relevant to the accused's state of mind as far as particularly the first count is concerned. And I don't see anything in section 137 which would take it out so I will allow it. But by the same token I certainly wouldn't want to encourage dilation of that material eg from the brother's evidence." 26 It is clear from this ruling that his Honour had applied his mind to whether the probative value of the proposed evidence was outweighed by the danger of unfair prejudice to the appellant, as required by s 137 of the Evidence Act, 1995. 27 There is nothing in the trial transcript to indicate that his Honour was asked to exercise his discretion under s 135 of the Evidence Act to exclude the relationship evidence on the basis that its probative value was substantially outweighed by the danger that the evidence might be unfairly prejudicial to the appellant. 28 Ground 1 in the notice of appeal is in the following terms: - "The trial judge erred in allowing the evidence of Mejid Atroushi, Shekurd Atroushi and Shiwan Atroushi with regards to acts, contact and behaviour of the appellant with the complainant and her family from 1993 until the date of the alleged offences in 1998 on the basis that that evidence was not relevant and should have been excluded." 29 Ground 2 is in the following terms: - "In the alternative to ground 1, the trial judge erred in allowing the evidence of Mejid Atroushi, Shekurd Atroushi and Shiwan Atroushi with regards to acts, contact and behaviour of the appellant with the complainant and her family from 1993 until the date of the alleged offences in 1998 on the basis that that evidence was prejudicial and should have been excluded in the exercise of the trial judge's discretion." 30 The parties have conveniently agreed that the following is a summary (taken from the Crown's submissions in writing to this Court) of the evidence (with transcript references) which was admitted pursuant to his Honour's general ruling quoted above, and which is the subject of the first and second grounds of appeal: - " Complainant's evidence · The appellant persistently followed the complainant from morning until evening, trying to stop her and talk to her (31.8.98 at 26-27). · The appellant raised the subject of marriage when he stopped her in the street but the complainant told him it was an inappropriate time, place and manner in which to discuss such a topic (31.8.98 at 26). · The appellant threatened to kill the complainant or one of her family if she didn't agree to marry him (31.8.98 at 27-28). … Complainant's father's evidence (Mejid Atroushi) · The appellant was Mr Atroushi's nephew. Mr Atroushi sponsored the appellant to come to Australia in 1993 and took him in as a house guest for his first 40 days in this country (31.8.98 at 8). · The appellant asked Mr Atroushi for permission to marry the complainant (31.8.98 at 8). · The complainant declined the proposal. At some unspecified time this was conveyed to the appellant (31.8.98 at 9-10). · Mr Atroushi told the appellant that his relationship with Mr Atroushi's family should cease (31.8.98 at 10.30). · On about four occasions the appellant swore at and threatened violence towards Mr Atroushi and members of his family including the complainant. On one occasion there was a fight in public, the police were called and a case went to court (31.8.98 at 10-11). · On the last mentioned occasion the appellant had said, 'If she refuses to marry me I will kill her even though I would go to gaol for ten years' (31.8.98 at 12.3) The complainant's brother (Shiwan Atroushi) · The appellant spoke of a need to marry the complainant or else he would kill her or some of her family (1.9.98 at 46). · In about late December 1994 the appellant made a telephone call in which he uttered threats against the complainant's family (1.9.98 at 48.31). · On 3 January 1995 the appellant attacked Mr Shiwan Atroushi with a metal bar in a street in Liverpool. On seeing Shiwan's father and sister the appellant ran off but was arrested a short time later (1.9.98 at 48-49)." 31 Having admitted the above evidence, it was necessary for his Honour to give the jury a specific direction that such evidence was admitted for a limited purpose, and that it must not be used to show a general criminal disposition on the part of the appellant. In this respect, his Honour gave the following direction, to which no objection was taken at the trial: - "It may be convenient if I mention another legal direction now. We have had some relatively brief evidence as to events earlier than - whether it be January or April 1995 it is not important. I think the last incident was 3 January, but the actual order was 7 April. So evidence of what happened up to that point of time comes before you for a limited purpose only, and that is as to an examination of the state of mind of Mr Atroushi. If you accept that what he did was as is alleged in the Crown case you would need to consider what was going on in his mind, and in that consideration you are entitled to look back at the earlier events. If you accept them it could assist you in coming to a conclusion about his state of mind on 26, 27 and 28 January. But you are not entitled to use that material to, for example, say to yourselves that this man has a propensity to commit crime. That is not the approach at all. It is for that limited purpose of examining his state of mind. The only evidence directly against him in relation to these matters is of the events of the 26, 27 and 28 January." 32 Before this Court, counsel for the appellant, who was not counsel at the trial, argued in essence that the relationship evidence should have been rejected because it is not relevant within the meaning of s 55 of the Evidence Act as it could not rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding, ie that the appellant stalked the complainant between 25 and 29 January 1998. This is because it was too remote in time. 33 Generally speaking, relationship evidence is admissible in order to place the evidence of the offence charged into a true and realistic context, in order to assist the jury to appreciate the full significance of what would otherwise appear to be an isolated act occurring without any apparent reason: see e.g. R v MM (2000) 112 A Crim R 519 at 538. In the instant case, it had a more specific function in that it went to an element of the offence, namely, that the appellant had the intention of causing the complainant to fear physical or mental harm in that he knew that his conduct was likely to cause fear in the complainant.

34 His Honour made this clear to the jury in the above quoted extract from the summing-up (brief as it was) by focusing their minds upon the need to consider what was going on in the appellant's mind on the critical dates, and in that respect the jury were entitled to look back at the earlier events.

35 The jury were also succinctly warned that they could not use that evidence as establishing a propensity on the part of the appellant to commit crime. 36 Alternatively, counsel for the appellant argued in this Court, that if the relationship evidence were relevant, then it should have been struck down, either by the mandatory terms of s 137 or by reason of the discretion vested in his Honour under s 135. 37 In my view, neither of these grounds of appeal has been made out. Some brief reference to authority is helpful. In R v AN (2000-2001) 117 A Crim R 176, Kirby J (in a judgment with which Priestley JA and Greg James J agreed) reviewed (at pages 181-185) some of the more recent judgments dealing with relationship evidence. I shall touch upon certain aspects of that judgment. 38 Kirby J emphasised that evidence is admissible to prove a relationship between the complainant and the accused, where an understanding of that relationship is important to the determination of guilt. Such evidence serves two purposes. The first is to explain what happened, and why it happened. The second is to furnish the context within which the allegations against the accused may be examined: see Wilson v The Queen (1970) 123 CLR 334 at 338, per Barwick CJ; Harriman v The Queen (1989) 167 CLR 590 at 630 per McHugh J. 39 And as Barwick CJ explained in Wilson at 339: "The touchstone is logic. It is not that all the evidence of the relationship of the parties is admissible, but only that from which a relevant inference may logically and reasonably be drawn." 40 McHugh and Hayne JJ said in Gipp v The Queen (1998) 194 CLR 106 at 130-131:- "Without knowing the course of the relationship, the jury may have had great difficulty in accepting that the incidents could have occurred in the way that the complainant described: R v Etherington (1982) 32 SASR 230." 41 Kirby J adverted in AN (at 183) to the question whether it is valid to enquire if the events which the Crown seeks to introduce are too remote from the events which are the subject of the charge. Dealing with events before the offence, he concluded that time, as such, appears not to be a limitation upon the reception of relationship evidence. As explained above, the test is logic, and the capacity of the events to explain the conduct charged. 42 McHugh J explained in Harriman (at 630): - "In Garner (1963) 81 WN (Pt 1) (NSW) 120 on a charge of assault occasioning actual bodily harm, evidence of 'a long course of cruelty and continued ill-treatment' (at 122) by the accused to the complainant was rightly admitted because it showed the 'atmosphere of hostility' (at 129) which existed and made more probable than not that the assault in question had occurred." 43 Moreover, Kirby J pointed out, the remoteness of conduct from the offence charged is important in the exercise of discretions under s 135 and 136 of the Evidence Act and the mandatory provisions of s 137. 44 However, the more remote the relationship evidence may be, the less will necessarily be its weight: see R v Beserick (1993) 30 NSWLR 510 at 521-522. Once again, this is a question of logic. 45 In the light of these well established principles, the impugned evidence in the subject case, clearly, in my view, passed the relevance test as required by s 55 of the Evidence Act. It clearly gives meaning to the events of the critical period in January 1998, and is relevant to the elements of the stalking offence in that it went to establishing that the conduct in January 1998 was likely to cause fear in the complainant. That would include fear of physical or mental harm, or both. 46 In the context of this case, none of the relationship evidence could reasonably be said to be so remote in time as to be lacking in sufficient weight to justify its admission. It was further contended however, that "when proper account is given to the weaknesses and dangers in the evidence, that the probative value was 'particularly low' and the only conclusion open was that the probative value of the evidence was outweighed by the danger of unfair prejudice". It is important to remember that s 135 is concerned with the danger that the challenged evidence might be unfairly prejudicial and s 137 speaks of the danger of unfair prejudice. These phrases emphasise the element of unfairness. Neither section is concerned with evidence which could be described as prejudicial merely because it points to the guilt of the accused: see Papakosmas v The Queen (1999) 196 CLR 297 at paras 91, 98. 47 The continuous sequence of events between 1993 and 1998 involving the relationship between the appellant and the complainant went directly to the state of mind of the appellant at the time of the commission of the stalking offence. His Honour correctly warned the jury against the possible misuse of such evidence. Thus, his Honour was right not to exclude it under s 137. 48 Although his Honour did not, it would appear, direct his mind to the discretions in s 135 and s 136, I am quite satisfied that there was no basis upon which his Honour could have justifiably exercised his discretion to exclude or limit any of the relationship evidence which the Crown sought to tender. I would reject grounds 1 and 2. 49 The third ground of appeal is that the trial judge erred in failing to properly direct the jury regarding the appellant's knowledge of whether the gun was loaded. 50 In his directions to the jury on this aspect of the Crown case his Honour said: - "The third count, 28 January again - that is no issue - at Liverpool - is not an issue - did possess a loaded firearm. There is a lengthy report from some firearm expert which you might not need, members of the jury. A loaded scope sighted 22 calibre rifle you might well conclude is a loaded firearm. A public place - that again should not detain you. For relevant purposes, a public place includes the visitor's parking area in a home unit block. As to possession, one does not need to have something in the hand or in one's coat or pocket or wallet, et cetera, before the law says you have it in your possession. You do not need to own it. You can possess something temporarily or for some limited purpose. I could borrow something, put it in the boot of my car, drive somewhere. I would be in possession of it. The essence of it is having control over it before one has possession.

You would need to come to a conclusion that the accused knew that it was there - knew that he had the rifle and the ammunition in the boot of the car." 51 Trial counsel for the appellant requested further directions from his Honour to the effect that the appellant would have to have the requisite knowledge that the weapon was loaded. Thereupon his Honour gave the following further direction: - "As to the third count, the gun in the boot of the car. It is part of what the Crown has to prove that the accused not only knew that he had the gun in the boot of the car, but that he knew it was loaded." 52 It was submitted that his Honour failed to provide the jury with a summary of the law to be applied in considering the aspect of the appellant's knowledge that the weapon was present in the boot of the vehicle and that he knew that it was loaded. Reliance was placed here upon the well known passages from the judgment the High Court in Alford v Magee (1952) 85 CLR 437, and of this Court in R v Zorad (1990) 19 NSWLR 91 at 105, to the effect that a summing-up should not only include directions as to the ingredients of the offence which the Crown has to establish, and an explanation of how the relevant law may be applied to the facts of the case, but it should also include a collected resumé of the evidence which relates to each of those ingredients, and a brief outline of the arguments which have been put in relation to that evidence. 53 These observations must, of course, be looked at in the light of s 99 of the Criminal Procedure Act 1986. 54 Sub-section 1 of s 99 provides that at the end of a criminal trial before a jury, a judge need not summarise the evidence given in the trial if of the opinion that, in all the circumstances of the trial, a summary is not necessary. This section applies despite any rule of law or practice to the contrary. 55 Something should be said about the summing-up in this trial. The evidence occupied three days. On the morning of the fourth day, counsel addressed and his Honour summed-up. It might be said, in the circumstances, that the summing-up was commendably brief. His Honour concisely stated the relevant legal principles and did not attempt to summarise the evidence, nor was he asked to do so. From time to time, of course, brief reference was made to certain aspects of the evidence to put the directions of law in context. 56 The jury retired to consider its verdict at 12.50pm on the fourth day. At the request of counsel, his Honour brought the jury back. He corrected one error of no immediate relevance and repeated his direction as to self defence. Finally, he gave the added direction sought in relation to knowledge that the gun was loaded, which I have set out above. 57 The jury retired to further consider their verdicts at 1pm and returned at 2.50pm with the verdicts on each count. 58 His Honour's summing-up was perfectly adequate, taking into account the re-directions as requested by counsel. Sufficient was put before the jury for them to determine safely whether the Crown had established beyond reasonable doubt that the appellant not only knew that the gun was in the vehicle but that it was loaded. To be realistic, the conclusion that the appellant knew that the gun was not only in his motor vehicle, but also that it was loaded, was virtually irresistible. As Herron CJ said in R v Vandine (1970) 1 NSWR 252 at 257, a court is entitled to take a common sense view of criminal activities. Obviously the jury took that approach. The question whether the Crown had proved beyond reasonable doubt that the appellant knew that the weapon was loaded was entirely a matter of fact to be resolved by the jury. In the circumstances of this case the directions in that regard were adequate. I would reject ground of appeal 3. 59 Finally, ground 4 asserts that the trial judge erred in not detailing in his summing-up the denials made by the appellant in his evidence to the relevant charges. In relation to the two counts upon which the appellant was convicted, it is contended that "his Honour failed to give to the jury any aspects of the issues confronting the jury in their consideration of the evidence, nor did his Honour summarise in any manner the appellant's denials". It is submitted that the consequence is that the appellant did not receive a fair trial. 60 As I have already indicated his Honour did not summarise the evidence in the trial during the course of his summing-up. He did, however, summarise the submissions by respective counsel in their closing addresses. The summing-up commenced immediately the addresses concluded, so that the arguments of counsel would have been very much in the minds of the jury at the time of the summing-up. 61 Having concluded his summary of arguments of counsel, his Honour said: - "Members of the jury, if I start to get into the evidence I will be another half an hour, I would have thought. My feeling at the moment is that I have probably, in outline, covered it sufficiently for you. Has counsel got any comments about that? Crown Prosecutor: I have no difficulty with the evidence aspect, your Honour… Turnbull: Your Honour, I have no problems."

His Honour then went on to inform the jury that all the evidence had been tape recorded and if they needed to be reminded of any part of the evidence, that could easily be achieved. In these circumstances the Crown correctly contends that rule 4 of the Criminal Appeal Rules applies. 62 In so far as the 2 surviving counts are concerned, it would have been clear to the jury that the defence consisted essentially of denials made by the appellant. He denied, for example, in relation to count 1, being present in the vicinity of the complainant's home on the first 3 occasions, and claimed an innocent reason for his presence on the last occasion. On count 3 he denied being in possession of the loaded firearm, by denying knowledge of the existence of the weapon in the boot of his car as well as denying knowledge of the existence of the cartridges located in his jacket. 63 The Crown contends, and I agree, that the simplicity of the appellant's defence must have been such that counsel at the trial did not see any disadvantage in the trial judge giving any further elaboration than he had given. There is no substance in this ground and leave should be refused to argue it. I would dismiss the appeal. oOo

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