R v Azizi

3 Section 97 provides:

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless -

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

1. Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.

4 The s 97 notice in relation to this matter stated that the facts in issue to which the tendency evidence related was the state of mind of the accused person at the time of killing the deceased. Further, that the tendency evidence was to be led to demonstrate that, at the time of the killing of the deceased, the accused person had the intent to kill or cause really serious injury to the victim or knew that his acts would probably cause death or really serious injury to the victim.

The alleged tendency was stated in the s 97 notice as the accused's tendency to:

(a) Act in a particular way, namely:

a tendency to inflict physical violence or act in an abusive manner towards the deceased during their marital relationship.

(b) Have a particular state of mind, namely:

that it was permissible and appropriate to inflict physical violence or act in an abusive manner towards the deceased person as an incident of the marital relationship particularly during times of conflict.

5 Whilst it was not in dispute that the accused caused the deceased's death by strangulation, the accused denied that he did so deliberately or with the intention of killing the deceased or causing her really serious injury. He maintained that he reacted only to defend himself from her attack. The prosecution submitted that it sought to lead the proposed tendency evidence to prove that the accused acted with the relevant intent for the crime of murder and to rebut the defence of self-defence.

6 The s 97 notice provided particulars of 16 pieces of evidence as to the accused's conduct towards the deceased which the prosecution sought to lead as evidence of the alleged tendency, probative of his state of mind, when he killed the deceased. The 16 pieces of evidence relied upon by the Crown were contained in the statements of Shookria Abid -the sister of the deceased woman; the statement of Monis Khaliqy - an interpreter; the statement of Magitas Suresh - a family violence worker with WAYSS; and, Catherine MacKinnon - a senior maternal healthcare worker for the City of Casey.

7 Particulars 1 through to 5 were allegations from the statement of the deceased's sister, Shookria Abid, and commenced in 1997 and continued up to a period of three days before the deceased was killed.

8 The first particular was that the deceased was beaten by the accused within seven days after the marriage. This information was imparted by the deceased to her sister Shookria Abid shortly after she was able to speak to her for the first time in a number of years when neither had access to a telephone.

9 Particular 2 occurred around 1999 and was related to the accused hitting the deceased regularly. This was related by the deceased to her sister, followed by discussions between Shookria Abid and the accused on the phone during which he admitted to hitting the deceased when she had a big mouth.

10 Particular 3 is that approximately a month before the deceased was killed that the accused was hitting the deceased. This was related by the deceased to her sister and the deceased said it was because the maternal healthcare worker was coming to the house every Tuesday and she was seeing community workers each Thursday and the accused was very unhappy. Further she had been forced out of her family home twice during the day time whilst the accused was not present and only allowed in at night.

11 Particular 4 was alleged to have occurred a week before the deceased's death, when she told her sister that she was going to divorce the accused, that the papers were being arranged, she had given him many chances but he was not OK. The deceased said she had been beaten so many times that she was under pressure and having to take medication. This phone call originated by the accused asking Shookria Abid to talk her sister out of the divorce. The deceased told her that if anything happened to her then she, the sister, would be responsible for it.

12 Particular 5, was alleged to have occurred three days before her death when the deceased telephoned her sister and told her that she did not trust the accused and was worried that he was going to do something to her.

13 The next particulars 6 through to 12 are from the statement of Monis Khaliqy, an interpreter.

14 Particular 6 related to the observations made by Monis Khaliqy of the accused towards the deceased and her reaction of becoming agitated or panicked as a result of his observed aggression towards her.

15 Particular 7, the deceased telling the maternal healthcare services nurse, through her interpreter, that the last two babies were forced upon her and that her husband was mentally, verbally and physically abusing her. That this abuse started the day after she married and continued in their time during Iran and was still continuing. This was alleged to have occurred around about 13 September 2007, a couple of months prior to the murder.

16 Particular 8, when Ms Khaliqy was present in her role as interpreter at the family home at Hampton Park on 26 September 2007, the deceased stated that the accused abused her mentally, physically and verbally, that she hated him, was scared of him and was very lonely.

17 Particular 9, the deceased again repeating what she had said on earlier visits on 23 October 2007 at the family home in Hampton Park when she was attending with a counsellor from the maternal health service on 7 November 2007 at the family home at Hampton Park.

18 Particular 10, Monis Khaliqy attended with Catherine MacKinnon. The deceased detailed the fights she and the accused were having over money, that she did not have access to a bank account. Any time she went to use her bank card the accused would swear at her and punch her. She informed them that the accused was punching her and verbally abusing her. She said she wished to get out of the relationship but when she told the accused that she wished to leave this caused an argument during which he punched her three times to the head making her feel dizzy. She told them he would beat her and then want sex with her. She locked herself in her room for around four days from about 23 October onwards.

19 Particular 11 allegedly occurred on 14 November 2007, again during a visit by Catherine MacKinnon and Monis Khaliqy at the family home at Hampton Park. The deceased related that the accused man said he was going to help her more with the housework and the children but when she asked him the next day he screamed at her that she was the slave - her job. She was relating to them the shame that the accused had indicated he felt in respect of her threat to leave and that he was scared she was going to leave him.

20 Particular 12: allegedly occurred on 13 September 2007, at the family home at Hampton Park, the deceased told Monis Khaliqy that the accused told her if she divorced or separated from him or told anyone what was going on in the house he would kill her because he could not carry the shame. She told them that the accused was scared because she was involving professional services and fearful that she might separate from him.

21 Particular 13: on or around 2 November 2007, the deceased disclosed to Magitas Suresh, a family violence worker referred by Catherine MacKinnon to assist the deceased, the mental, physical and emotional abuse that she said she had suffered from the accused and she said that it started the day after she got married.

22 Particular 14: the statement of Catherine MacKinnon that the accused had been shouting and threatening to harm her the previous night and into the morning. That the deceased had called the police twice at 1.00 am - they did not attend. They stated to her that the accused had previously beaten her until she bled from the mouth but on this occasion he'd hit her on the back. He had verbally abused her and threatened to kill her. She asked MacKinnon to call the police to give the accused man a warning. She said that the accused told her, the deceased, that she did not have any rights.

23 Particular 15: on 7 November 2007, the deceased told Catherine MacKinnon that the accused had abused her for the past 14 years and she said she would no longer take it without a word.

24 Particular 16: on or around 14 November 2007, the deceased told Catherine MacKinnon that she had told the accused that she would leave him if he did not change his ways and show more respect. She told her that the accused had become upset as a result of that occurring.

25 There is no doubt in relation to this matter and, such was conceded by counsel for the accused, that the evidence referred to in the 16 particulars, was evidence of the relationship between the deceased and the accused and clearly admissible to provide the context in which these otherwise isolated acts, on Tuesday 20 November 2007, occurred.

26 Counsel for the Crown submitted that whilst some minor parts of the evidence may be described as remote in time, the majority of the evidence contained in the particulars, sought to be relied upon, occurred in the weeks immediately prior to the death of Marzieh Rahimi. Further the crown submitted that the evidence demonstrated a tendency to become upset and to behave in a particular way to the deceased, which was one of aggression and violence, demonstrating an inconsistency with the accused being a peaceful loving husband who was bullied by his wife.

27 As I understood it, the primary submission of counsel for the accused that the evidence sought to be adduced as tendency evidence under s 97, should be excluded was that it was not probative of the accused's state of mind at the time of the deceased's death, or capable of being probative of his mind, as there was a lack of relevant similarity in the allegations and/or a lack of connection in time and circumstances of the tendency material to the offending and, therefore, a lack of relationship between the facts in issue. It was said by counsel, to express it shortly, that the evidentiary material relied upon had to demonstrate a similar intent, that is, an intent to kill or cause really serious injury for it to be admissible as tendency evidence. Not only that, but there was a need for the evidence to be more immediate and not as remote in time, as the majority of the particulars in this case.

28 That, in my view, misconceives the purpose of tendency evidence, particularly in this case. It is clear that the evidence referred to in the s 97 notice was probative of the accused's tendency to inflict physical violence or act in an abusive manner towards the deceased over a lengthy period of time and particularly during any time of dispute. This goes to the issue that has to be proven by the Crown, that is, was he at the time that he strangled the deceased, intending to either kill or cause her really serious injury and not acting in self-defence.

29 The evidence was capable of demonstrating, on the part of Soltan Azizi, a tendency to act in a particular way over a lengthy period of time, that being to inflict physical violence or act in an abusive manner towards the deceased during their marital relationship, which may be capable of establishing an inability to control his anger and to respond with violence or aggression towards the deceased over many years Such evidence can be seen as powerful and strong evidence capable of refuting the version of events given by the accused as to how the deceased met her death. This demonstrates a high degree of unlikelihood that the deceased met her death as a result of her aggression towards the accused man resulting in him having to defend himself from her attack.

30 This evidence would also be of great assistance to the jury when the jury are assessing the state of mind of the accused, at the time of the strangling of the deceased. There was a clear inference available, from the circumstances of the other incidents, that the response of the accused to any dispute or even minor irritation with the deceased amounted to an intentional and violent response towards the deceased, thus demonstrating a degree of violent overreaction to any real or imagined defiance demonstrated by Marzieh Rahimi towards the accused. .

31 In respect of the issue of whether the probative value substantially outweighs any prejudicial effect of the evidence, I am of the view that it does so substantially outweigh the prejudicial effect. This evidence is capable, when combined with all the other evidence, of removing any reasonable doubt that may exist of an innocent explanation for the actions of the accused man in causing the death of the deceased.

32 In R v Patrick Joiner[1] the NSW Court of Criminal Appeal referred to the test relating to the probative value of the evidence outweighing any prejudicial effect. In that case the accused had driven his wife to a remote location, argued with her and struck her on the head. He said to the police that although he struck her to the head, which blow killed her, he did not intend to cause her really serious injury or death. The crown led evidence of his previous tendency to become violent to three women with whom he had a relationship. The trial Judge permitted the evidence to be led as tendency evidence in respect of a number of issues, including; causation, intention, and to rebut accident or unintended act in relation to the charge of murder.

33 The trial Judge's decision was upheld by the Court of Criminal Appeal who reiterated the test as being

...if it first be assumed that all the other evidence in the case left the jury with a reasonable doubt about the guilt of the accused, the propensity evidence must be such that, when it is considered along with the other evidence, there will then be no reasonable view that it is consistent with the innocence of the accused. The propensity evidence must be such that, when it is added to the other evidence, it would eliminate any reasonable doubt which might be left by the other evidence.

[1] [2002] NSWCCA 354; [2002] 133 A Crim R 90