R v Carberry

Supreme Court of NSW|2023-02-28|Before: Hamill J

Solicitors: Solicitor for Public Prosecutions (NSW) (Rex) Styles Law Solicitors (Carberry) File Number(s): 2020/335222

Reasonable notice

The issue that I am currently concerned with is governed substantially by s 97 of the Evidence Act: 97 The tendency rule (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. (2) Subsection (1) (a) does not apply if-- (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.
It is clear that notice was not provided in accordance with s 97(1)(a). However, s 100 of the Evidence Act allows the Court to dispense with the notice requirements. The Prosecutor, with admirable fairness and thanks to some quick and hard work on her part and that of her instructing solicitor, does not object to a direction being given under s 100(1).
Given the position taken by the Prosecutor it is unnecessary to provide extensive reasons for doing so, but as I indicated earlier today, I propose to dispense with the notice requirements under s 97. In reaching that position I gave great weight to the position taken by the Prosecutor and to the following matters relevant under s 192(2) of the Evidence Act: 1. Giving the permission or direction will not greatly add to the length of the trial. 2. Giving the direction is not unfair to the prosecution, because of their diligence and the availability of a relatively short adjournment. 3. The evidence is potentially important, although the real issue involves an assessment of the probative value of the evidence. 4. The accused is charged with murder and faces a lengthy custodial sentence if convicted. The delay was not his fault. It would be wrong and potentially unjust to prevent him from arguing the issue on its merits. 5. I have exercised the power to adjourn the matter for a short period, and any prejudice or unfairness to the Prosecution was alleviated as a result.
Accordingly, pursuant to s 100(1) of the Evidence Act, I make a direction to dispense with the notice requirements.

The prosecution case

The prosecution case is that the deceased was lured to an address in Griffith by messages sent by the accused's short‑term girlfriend, Tearna O'Hanlon. That description of the relationship may be inapposite, but it suffices for the present purposes. The pair had, at least for a short while, been involved in some form of intimate relationship.
In the period leading up to the incident the deceased sent several lewd messages to Ms O'Hanlon, on Facebook Messager, indicating a desire to perform oral sex upon her. The relationship between Ms O'Hanlon and Mr Mousawi seemed otherwise to involve the mutual supply of small quantities of cannabis.
On 9 September 2020 the deceased sent messages to Ms O'Hanlon saying, "Can I eat your pussy" and "I would eat you pussy so good". The next day he sent more messages to a similar effect including, "I'd love to eat you". Between 8 and 10 September Mr Mousawi sent 16 messages to Ms O'Hanlon which remained unanswered. At 11.36pm on 10 September Ms O'Hanlon finally responded with a single word "No", but Mr Mousawi persisted saying, "Please would you let me".
At 01.47am on the morning of his death Mr Mousawi sent two messages, "Can French kiss your down under" and "I would love to".
The prosecution case is that the accused saw these messages and formulated a plan to lure Mr Mousawi to an address in Griffith, so that he could attack him and take his car. The plan was carried out by Ms O'Hanlon, who replied to Mr Mousawi with a message asking, "Can I have a lift". The communications continued with Ms O'Hanlon providing an address for the deceased to pick her up and telling the deceased she was by herself. When Mr Mousawi arrived, he was confronted by Mr Carberry and Mr Honeysett. There is evidence of some kind of scuffle and Mr Mousawi was stabbed twice to the chest by Mr Carberry.
Mr Mousawi died of stab wounds at the scene a short time later. The prosecution case is that the attack by Mr Carberry was unprovoked, motivated by jealousy and an intention to rob Mr Mousawi's car. It relies on Ms O'Hanlon's evidence, the record of the Facebook messages, forensic evidence and the evidence of a forensic pathologist. The evidence of the forensic pathologist includes not only details of the two stab wounds, either of which according to the opinion of the pathologist could have resulted in death, but also details of an incised would to the finger, which the expert said appeared to be a defensive wound.

The accused's case

The accused's case is that there was no plan to rob Mr Mousawi and that he was indifferent to Mr Mousawi's amorous advances towards Ms O'Hanlon. His case is that Mr Mousawi started the physical altercation, and that he believed it was necessary for him to defend himself. As I understand it, the accused's case is that Mr Mousawi produced the knife.
To this point, that case has been put to Ms O'Hanlon in cross-examination. For the most part, she denied the propositions put to her in cross-examination. In the course of the argument on the admissibility of the tendency evidence, senior counsel for Mr Carberry said that the accused will give evidence in the trial and make a positive assertion that Mr Mousawi started the fight, and the accused was defending himself.

The issues in the trial and the proposed tendency evidence

The issues in the trial include: 1. Whether there was any plan to rob Mr Mousawi. 2. Who initiated the violence that erupted between the two men. 3. Whether Mr Carberry believed his conduct was necessary to defend himself. 4. Whether his response was a reasonable one in the circumstances as he perceived them to be.
I do not suggest that this is a comprehensive statement of the issues that the jury will be called upon to decide.
I turn then to the proposed tendency evidence. The precise form that the tendency evidence would take if it was admitted is not at this stage clear. But on the voir dire the following documents and items were tendered: 1. A bundle of documents tendered by the defendant (Ex VD-7) including: 1. The deceased's criminal history. 2. Police facts sheet H 950540490, for two offences of common assault and stalk/intimidate committed by the deceased on 31 August 2016. 3. Police facts sheet H 66111050, for an offence of common assault committed by the deceased on 20 November 2017. 1. The prosecution tendered (Exs VD-D, VD-E, VD-F): 1. Statement of witness, Sayedallah-Dost Mousawi, the deceased's father, dated 1 September 2016 for offence H 950540490. 2. Recording of evidence given by Sayedallah-Dost Mousawi against the deceased in the Local Court, for offence H 950540490. 3. Domestic Violence Evidence in Chief ("DVEC") video recorded of the deceased's brother, Sayed Zaker Mousawi, and photos of his injuries for offence H 66111050.
The accused seeks to rely on two previous incidents of violence on the part of Mr Mousawi. These incidents were recorded in Mr Mousawi's criminal history, and each incident resulted in convictions. In October 2016, Mr Mousawi was convicted for offences of stalk and intimidate and common assault and placed on a 12-month good behaviour bond ("the 2016 incident"). In December 2017 he was convicted for an offence of common assault and was sentenced to 7 months' imprisonment, which was then suspended on various conditions and the entering of a bond under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the 2017 incident").
There is some controversy over the facts of the 2016 incident, as there are various sources of information giving different accounts of what the incident entailed. The facts sheet relating to the 2016 incident, which was tendered as part of the accused's evidence on the voir dire, suggest that Mr Mousawi assaulted his father when the latter refused to give him his car keys. Nothing about that very broad description has changed. The statement of the father provided a slightly different narrative, but apart from the length of the assault, which will not be pressed as I understand it by the accused, it is quite similar in effect to the facts sheet.
The facts of the 2016 incident are that Mr Mousawi's father resisted giving his car keys to Mr Mousawi, because Mr Mousawi did not have a drivers licence. Mr Mousawi was told by his father, "you have been banned from driving for five years", however Mr Mousawi persisted, according to the statement provided by the father, where he described Mr Mousawi screaming, "Give me the fucking keys. Give me the fucking keys to your car." The statement described the deceased pushing and pulling his father, standing right in his face, being very rough and causing him a lot of pain.
That was the statement that Mr Mousawi senior provided to the police when he first made a complaint about these events. However, again through the diligence of those instructing the Prosecutor, the prosecution managed to produce the recording of the defended hearing in the Local Court relating to this matter. I listened to the recording before embarking on the delivery of this judgment. The recording is of the evidence, given through an interpreter, from Mr Mousawi senior to the Local Court and it paints a quite different picture of the 2016 incident.
In short Mr Mousawi senior described the fact that he refused to give his son the car keys when his son asked for it, "and then he pushed me but he didn't hit me". Mr Mousawi senior became nervous and complained to the police. Later his son kissed his hand and kissed his face "and I forgave him". He was asked again to describe what had happened and his description was in almost identical terms. He said, "We had an argument. He pushed me back and then I went to the police". His son, the deceased, then stayed at another son's house. The nature of the push was described by the Prosecutor eliciting the evidence in the Local Court as being "an open‑palmed push" and was found by the magistrate to be a "one-handed pushing".
At the conclusion of the evidence in chief of the deceased's father, the parties had some discussions. The result was that the Prosecutor accepted that she could not sustain the initial charge, which had happened allegedly the night before, and that charge was withdrawn. The now deceased, then defendant, entered pleas of guilty to a common assault and a stalking/intimidation offence, which was then restricted to a single day. The Magistrate, according to the deceased's criminal record, disposed of the matter by placing the deceased on a 12-month good behaviour bond.
There is less controversy surrounding the 2017 incident. There was a facts sheet relating to that incident served as part of the accused's material on the tendency notice and it was supplemented by a DVEC interview provided by the victim, which is to say is the deceased's brother. That incident also arose when the victim of the assault refused to comply with Mr Mousawi's, that is the deceased's, wishes in that instance to provide him with a lift in his brother's car. The deceased became violent, kicking his brother in the head on least two occasions, when the brother had attempted to run away from the incident and fell over. There were also images tendered showing the relatively minor but real physical injuries occasioned by the assault.

The submissions

The accused submitted that the evidence had significant probative value and was capable of being used by the jury in making important factual findings on the central issues in the case. In particular it was submitted that the evidence provided a complete picture that would otherwise be absent and supported the accused's case that Mr Mousawi was the initiator of the violence.
The accused's submission was that the jury would be entitled to reason that the tendency evidence demonstrated not only that Mr Mousawi was capable of committing quite serious acts of violence, but also instigating such violence. Without this evidence the jury may think, and I cannot put it better than Mr Anderson SC, so I will quote him: "'Well, here's this poor man, he turns up and out of nowhere this fight erupts. It must be Mr Carberry. He's the violent one.' So, the evidence on tendency goes to show, 'Well, actually, not necessarily. He can start a fight and he's also quite happy to be violent himself.'"
Further, it was submitted that the issue goes directly to the defence case that Mr Carberry was responding to acts of violence rather than instigating them. Similarly, it provides an alternative narrative to that presented by the prosecution. Namely, that Mr Carberry initiated the violence out of jealousy or was motivated to commit a crime of robbery.
The accused relied on a number of cases of a similar nature where people accused of murder or other violent crimes were permitted to adduce evidence, including tendency evidence, suggesting in one way or another that the victim was a person of violent disposition or had a history of committing acts of violence. [1]
The Prosecutor submitted that the evidence lacked significant probative value, as the incidents were isolated and represented violence at a low level. Furthermore, reliance was placed on the fact that the earlier incidents took place in the context of a family unit with its own unique dynamics. She disputed the description of the 2016 incident as one of extreme violence, and Mr Anderson very properly just a few moments ago, having heard the father's evidence in the Local Court, agreed that he could not maintain that description of the 2016 incident.
The learned Prosecutor also relied on the passage of time between the earlier incident and the murder alleged in the present case and on the absence of evidence of any violent conduct on the part of the deceased in the meantime.

Resolution

The New South Wales Court of Criminal Appeal dealt with a similar issue in R v Cakovski [2004] NSWCCA 280; (2004) 149 A Crim R 21. The evidence in that case was of a much more extreme kind. The evidence was that the victim had killed three people; however, those killings took place some 23 years earlier. The accused, who stabbed the deceased to death, sought to rely on self‑defence. His case was that the victim had threatened to kill another man that same night.
The members of the Court, namely Hodgson JA and Hulme and Hidden JJ, did not speak with one voice as to the reasons for the admissibility of the evidence. However, all three members of the Court ruled that the evidence was admissible. The trial Judge had excluded the evidence and the trial of the accused had miscarried as a consequence. The majority on this issue, being Hodgson JA and Hulme J, did not consider the evidence had significant probative value as tendency evidence, but was admissible and significantly probative because it impacted on the probability that the defence case might be true.
Hodgson JA found that in the absence of such evidence, the accused's defence might seem "improbable." His Honour stated at 30: "In my opinion, evidence of the 1978 murders, and the reference to them in the threat made by the deceased to Mr. Logounov just a few hours before the stabbing, had significant probative value, in this way. In the absence of that evidence, the appellant's evidence that the deceased threatened to kill him in such a way as to make him fearful for his life, and continued to make such threats and to attack him notwithstanding the appellant's use of a knife, seems on the face of it highly improbable. In my opinion, it becomes less so once one knows that the deceased had committed three murders in the circumstances outlined, albeit as long ago as 1978, and also had made reference to those three murders in uttering a threat to kill Mr. Logounov just a few hours before. Of course, both the murders themselves and the threat made in this way to Mr. Logounov were not known to the appellant, but that does not reduce the relevance of the evidence. If the question to be determined was whether it was proved that the deceased actually did what the appellant said he did, beyond reasonable doubt or even on the balance of probabilities, one might consider the probative value of evidence that he murdered three people over twenty years before to be quite small, and also that there was a real chance that this probative value would be outweighed by its prejudicial effect. But in this case the question is rather whether there is a reasonable possibility that the deceased did these things, which otherwise might seem to be extremely improbable. On that question, in my opinion the evidence of the murders in 1978, coupled with evidence from an independent witness that, just a few hours earlier, the deceased had referred to these three previous murders apparently to add force and credibility to a threat to kill that person, is of substantial probative value."
Hulme J similarly stated at 34: "… the only basis upon which the evidence was admissible was that it rendered less improbable the Appellant's account that the deceased had threatened to kill him. Killing, and thoughts, and threats of killing another human being are sufficiently extreme or unusual that the fact that the deceased had killed people in the past was relevant because it rendered more probable, or perhaps more accurately, less improbable, that the deceased uttered the threats the Appellant attributed to him. Furthermore, although the prejudicial nature of the evidence is clear, in the circumstances of the case, its probative value is such that there was no sufficient basis for excluding the evidence under s 135".
Hidden J had some reservation that the evidence "was admissible other than tendency evidence". However, he accepted the evidence had probative value for the reasons expressed by his colleagues. I confess that I share his Honour's reservations. If the evidence impacted on the probability of the accused's case being accepted or, as Hulme J put it, "rendered less improbable the appellant's account," it did so because of the process of reasoning that has very little to distinguish itself from tendency reasoning, as that expression is used in s 97 of the Evidence Act. Hidden J went on to conclude that the evidence had significant probative value as tendency evidence at 36: "… the evidence about the murders was admissible as tendency evidence because it had significant probative value despite its remoteness in time and lack of circumstantial detail. That probative value was enhanced by evidence that the deceased referred to those murders in his altercation with Mr Logounov. As it was evidence tendered by the appellant, it did not require the substantial measure of probative force mandated by s 101 of the Evidence Act and, as Hodgson JA has pointed out, it was tendered in respect of an issue upon which the Crown, not the appellant, bore the burden of proof."
In the present case, the 2016 incident was, as the Prosecutor submitted, not an extreme act of violence. However, it was an example of the deceased becoming aggressive, persistent and somewhat violent to his own father, in the face of not getting what he wanted. By itself, the 2016 incident has limited probative value. The 2017 incident, involving the deceased kicking his brother to the head while he was on the ground and was a reasonably extreme and violent response to the refusal of his brother to comply with his request for a lift. It is the combination of the two incidents that is capable of giving rise to the kind of tendency asserted in the notice by the accused.
The gap in time between the earlier incidents and the night of the deceased's death was not so great as to deny the evidence of its capacity to impact on an assessment of the facts in issue, which is to say probative value. I am not persuaded that the fact that the earlier acts of violence took place in a family setting has very much impact on the probative value of the evidence. I accept the accused's submission that the evidence has a capacity to impact on each of the central facts in issue in the case, at least those that I have identified earlier in this judgment.
I accept that it might impact the jury reasoning, in accordance with the process of reasoning described by Simpson J in Elomar v R (2004) 316 ALR 206 at 260 and 278; [2014] NSWCCA 303, approved of in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, by at least Gageler J at 328. That is, the 2016 and 2017 incidents taken together may establish the tendency asserted by the tendency notice, and that such a finding might be used to make it more likely that it was the deceased who was the initial aggressor in the altercation with the accused, because his advances to Ms O'Hanlon were consistently rebuffed or ignored and, contrary to his desires and expectations, the young woman was not alone when he arrived and Mr Carberry effectively, if not physically, stood in his way of getting what he wanted.
Applying the decisions of the High Court in cases such as Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20, The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40; McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52, Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1, TL v The King (2022) 96 ALJR 1072; [2022] HCA 35 and IMM v The Queen, I have concluded that the extent to which the evidence might impact upon the facts in issue is significant. Accordingly, the evidence is admissible pursuant to s 97 of the Evidence Act. In reaching this conclusion I have not found it necessary to resolve the issue of whether tendency evidence adduced by an accused person is subject to some less stringent test, a matter discussed in argument and arising out of judgments in cases such as R v Holmes (No 5) and The Queen v Majak [2022] NTSC 57.
I should also say the evidence is also relevant and admissible for the reasons articulated by Hodgson JA and Hulme J in R v Cakovski. That matter may have particular significance in circumstances where it is only the accused who will give evidence, as I understand it, that the deceased was the original aggressor, and the probability of that account is enhanced by the existence of earlier acts of violence on the part of the deceased. I repeat, that process of reasoning seems to be a form of tendency reasoning but, in any event, the probability reasoning or absence of improbability reasoning articulated by Hodgson JA and Hulme J seem to have some resonance in a case such as the present where the jury might otherwise reason as Mr Anderson described.

Ruling

For those reasons I rule that the evidence is admissible. I will leave it to the parties to determine the form and manner it is to be presented to the jury, unless resolution is not reached, in which case I shall no doubt hear from the parties.

Endnote

Director of Public Prosecutions v Dixon (Ruling No 1) [2020] VSC 743, R v Holmes (No 5) [2021] NSWSC 115 and DPP v Wilson (Ruling) [2021] VSC 766.

Amendments 08 March 2023 - Trial concluded - publication restricted lifted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 March 2023

Evidence Act 1995(NSW)ss 97, 100, 192

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