231 A Crim R 537 at 549-550 [51]
DAO v R [2011] NSWCCA 63
81 NSWLR 568
De Gruchy v The Queen [2002] HCA 33
211 CLR 85
Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713
222 A Crim R 106
DSJ v R
Source
Original judgment source is linked above.
Catchwords
231 A Crim R 537 at 549-550 [51]
DAO v R [2011] NSWCCA 6381 NSWLR 568
De Gruchy v The Queen [2002] HCA 33211 CLR 85
Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713222 A Crim R 106
DSJ v RNS v R [2012] NSWCCA 984 NSWLR 758
Dyldam Developments Pty Limited v Jones [2008] NSWCA 56
Elomar v R [2014] NSWCCA 303316 ALR 206
Filippou v The Queen [2015] HCA 29256 CLR 47
Hughes v R [2015] NSWCCA 330
IMM v The Queen [2016] HCA 1490 ALJR 529
Monis v The QueenDroudis v The Queen [2013] HCA 4249 CLR 92
Papakosmas v The Queen [1999] HCA 37196 CLR 297
R v Burton [2013] NSWCCA 335237 A Crim R 238
R v Clark [2001] NSWCCA 494123 A Crim R 506
R v Fairbairn [2011] ACTSC 78212 A Crim R 32
R v Ford [2009] NSWCCA 306R v Moore (No. 4) [2015] NSWSC 259
Redman v R [2015] NSWCCA 110
Sokolowskyj v R [2014] NSWCCA 55
239 A Crim R 528
Victoria v Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31
Mr DT Scully (Crown)
Mr MJ Ierace SC
Mr RJ Wilson (Accused)
Judgment (17 paragraphs)
[1]
[1982] HCA 31; 152 CLR 25
Texts Cited: ---
Category: Procedural and other rulings
Parties: Regina (Crown)
Amirah Droudis (Accused)
Representation: Counsel:
Mr M Tedeschi QC; Mr DT Scully (Crown)
Mr MJ Ierace SC; Mr RJ Wilson (Accused)
[2]
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)
File Number(s): 2013/345405
Publication restriction: ---
[3]
JUDGMENT
JOHNSON J: The Accused, Amirah Droudis, is to stand trial upon a charge that, on 21 April 2013, at Werrington, she committed murder. The trial is to proceed by Judge alone as both the Accused and the Crown agreed to the trial proceeding without a jury: s.132(2) Criminal Procedure Act 1986.
In advance of the trial, issues have arisen for determination concerning the admissibility of evidence which the Crown proposes to tender.
[4]
The Crown Case and the Defence Response
Before proceeding to address the admissibility question, it is appropriate to say something about the Crown allegation against the Accused and the broad defence response to it.
The deceased was the former wife of Man Haron Monis ("Monis"). She was 30 years old at the time of her death. She and Monis married in 2003 and there are two young sons of their marriage. I will not identify the deceased as to do so is likely to identify the two children: s.15A Children (Criminal Proceedings) Act 1987.
At the time of the killing on 21 April 2013, Monis had been in a relationship with the Accused for some considerable time.
Monis died on 16 December 2014.
It is the Crown case that the killing of the deceased occurred at the instigation and behest of Monis, who had been in dispute with the deceased over custody of their sons. The Crown alleges that Monis took very obvious steps to give himself a solid (but heavily contrived) alibi for the time of the killing. The Crown alleges that it was the Accused who carried out the killing at the behest of Monis.
The Crown alleges that the Accused and Monis were in a close relationship at the time of the killing, and that the crime was motivated by a desire on the part of the Accused and Monis to get rid of the deceased so that they could live, as a single-family unit, with Monis' two sons and the Accused's daughter from another relationship.
The defence accepts that the evidence establishes that Monis arranged for someone to kill the deceased. The defence accepts that the deceased was murdered. Senior counsel for the Accused made clear that these matters were accepted by reference to the strength of the Crown evidence on these aspects, and not by way of any knowledge on the part of the Accused. The primary issue of fact in the trial is whether the person who killed the deceased was the Accused.
The Crown case is essentially a circumstantial one. The murder of the deceased occurred in a stairway in an apartment block at Werrington. Monis had an apartment in this building. The deceased had attended these premises on the afternoon of 21 April 2013 to pick up her two children from Monis after an access visit.
There is no issue that the assailant stabbed the deceased 18 times and then doused her with petrol before setting her alight on the stairway with the aid of matches.
[5]
The Tendered Evidence
The Crown seeks to tender evidence of aspects of the relationship between the Accused and Monis, and their joint activities in the period 2007 to 2014. Also tendered is evidence of events which are said to have occurred arising from the relationship between Monis and the Accused (on the one hand) and the deceased, the former wife of Monis (on the other hand).
The Crown tenders this evidence for different but overlapping purposes:
1. as evidence of the Accused's motive;
2. as evidence concerning the nature of the relationship between the Accused and Monis, and the state of mind of the Accused arising from that relationship; and
3. as tendency evidence.
[6]
Pretrial Arguments and Rulings
On 8, 9 and 10 August 2016, I heard submissions on the evidentiary issues calling for a ruling with respect to admissibility.
On 12 August 2016, I announced my ruling in the following way (PT135.18-136.6):
"I propose to express, in brief terms, my ruling on the matters which have been argued so far.
The Court has heard submissions concerning the admissibility of evidence sought to be adduced by the Crown at the trial of the accused. That evidence is particularised in paragraphs 9 to 78 of the Crown's Tendency Notice dated 28 July 2016, which is part of exhibit PTB.
Objection has been taken by the accused to the greater part of the evidence which the Crown identified in that notice. I propose to allow the Crown to adduce the evidence at the trial of the accused. I overrule the objections of the accused to its tender.
I will provide detailed reasons for this conclusion at a later time, but I make the following comments for the assistance of the parties at this point.
I am satisfied that the evidence is admissible at the trial for a number of overlapping purposes.
Firstly, the evidence is admissible with respect to the question of motive of the accused to kill the deceased. This goes to the central issue in the trial, whether the Crown can establish beyond reasonable doubt that it was the accused who killed the deceased on 21 April 2013.
Secondly, the evidence is admissible as it sheds light upon the relationship between the accused and Man Monis and the dynamics of that relationship. And also the relationship between the accused and Monis, on the one hand, and the deceased on the other hand. The evidence does not fall strictly within the terms of relationship evidence or context evidence as those terms are understood and used frequently in the context of sexual assault trials. However, the relationship between these persons and features of those relationships are relevant to issues in the trial and are relevant as well to the state of mind of the accused at pertinent times.
Thirdly, I am satisfied that the requirements of s 97 and s 101 of the Evidence Act 1995 have been satisfied so that the evidence is admissible as tendency evidence as well.
As I have said, I will give detailed reasons for these rulings in due course."
This judgment constitutes my reasons for this ruling.
[7]
The Crown Case Against the Accused
It is appropriate at this point to set out, in more detail, the way in which the Crown puts its case against the Accused in areas which are relevant to these admissibility issues. The Crown Case Statement will be utilised for this purpose.
The Accused was born Anastasia Droudis in 1979 of Greek Orthodox background. The Crown says that it was her relationship with Monis that led to her conversion to Islam. In July 2008, she changed her name from Anastasia to Amirah (Exhibit PTA, paragraph 64).
The Crown Case Statement asserts the following with respect to the relationship between the Accused and Monis (Exhibit PTA, paragraphs 8-13, footnotes excluded):
"8 MONIS and the accused commenced an intimate relationship by at least 2006 and were married in a religious ceremony in or about early 2009.
9 The relationship between DROUDIS and MONIS continued until 21 April 2013 and thereafter. It is the Crown's case that DROUDIS was in love with MONIS. However, their relationship went far beyond ordinary intimacy. DROUDIS was besotted with MONIS in a spiritual sense. DROUDIS saw MONIS as a spiritual leader and her teacher. From at least in or around 2007 MONIS held extreme religious and political beliefs, which included the belief that acts of violence against others and fire were acts of God's retribution. MONIS espoused these views publicly as 'Sheik Haron'. Arising from the relationship between DROUDIS and MONIS, DROUDIS adopted the extreme religious and political beliefs that MONIS espoused and also had an intense desire to do whatever it took to please MONIS. This state of mind allowed MONIS to control DROUDIS and have her act at his direction.
10 The Crown case is that this was a continuing state of mind that existed when DROUDIS stabbed and then set fire to the deceased.
11 In order to establish the nature of the relationship between MONIS and DROUDIS and her state of mind arising from it, the Crown relies upon a course of conduct by DROUDIS in the years prior to the murder. In particular, the Crown relies upon DROUDIS' actions from late 2007 to October 2009 (until her actions were largely curtailed by her arrest in October 2009 upon Commonwealth offences) in proudly acting as 'Sister Amirah', a spokesperson for Sheikh Haron. In that capacity DROUDIS, at MONIS' direction, appeared in videos which espoused his extreme religious views, including the view that Muslims killing people by stabbing them was God's will. DROUDIS also again at MONIS' direction harassed the families of deceased Australian soldiers, including by participating in DVDS to send the family of one of the soldiers suggesting that her late husband was a murderer and attending the funeral of another soldier to hand out literature.
12 From 5 August 2012 onwards the relationship between MONIS and DROUDIS also took on an additional personal dimension - that is, DROUDIS was introduced to MONIS' 2 sons (and the 2 sons of the deceased) … and at MONIS' behest, purported to assume the role of the boys' mother.
13 At MONIS' behest, DROUDIS attended the court ordered access visits between MONIS and his 2 boys. Further, at MONIS's direction, she quickly purported to assume the role of mother in relation to the children, with the children encouraged by MONIS to call her 'mummy'. MONIS wanted to live in a permanent family unit with DROUDIS and the children. It is the Crown's case that DROUDIS shared this desire and that this desire, together with her ongoing extreme religious beliefs and her intense desire to please MONIS, ultimately led DROUDIS to kill the deceased by stabbing her and then setting her on fire."
[8]
Several Bases of Crown Tender
As mentioned above (at [16]), the Crown sought to tender material upon a number of overlapping bases. The material was contained in two volumes (Exhibits PTB and PTC) and several accompanying disks.
The material was summarised chronologically in the Crown's Tendency Notice dated 28 July 2016 (Exhibit PTB). That summary of the material was utilised by the parties for the purpose of describing material tendered by the Crown on all bases (including the tendency basis).
The Crown material fell within the following broad categories (with areas of defence objection on non-tendency bases being indicated):
1. late 2007 to early 2009 - conversion of the Accused and the Accused's daughter to Islam and adoption by the Accused of the persona "Sister Amirah" (meaning "Princess - One who speaks"), a spokesperson for Sheikh Haron (Monis) - defence objection to parts on relevance ground;
2. late 2007 to November 2008 - appearances by the Accused (wearing a black niqab) in 11 extremist videos at the behest of Monis - in the course of lengthy presentations, the Accused praises Osama Bin Laden, delivers a fatwa against President-Elect Barack Obama for apostasy, expresses happiness about the September 2001 terrorist attacks, the October 2002 Bali bombings and the Holocaust, describes the Bali bombers as "martyrs", calls upon people to join the army of Islam and warns the then Prime Minister, Kevin Rudd, that Australians would be attacked and killed by Muslims - the Crown contends that the content of these videos and the demeanour of the Accused supports an inference that the Accused was reading from scripts prepared by Monis and appeared in them at his behest - (Exhibit PTB, Tab A, Disk 1; Exhibit PTC, Tab A) - defence objection to entirety - relevance and s.137 Evidence Act 1995;
3. 4 May 2008 to 6 May 2008 - at the behest of Monis, communications by the Accused with the family of a recently deceased Australian soldier, Lance Corporal Jason Marks - the Accused appeared in a video (one of the 11 videos mentioned at 34 above) wearing a black niqab and delivered a message similar to a letter from Monis, comparing Lance Corporal Marks to a Nazi soldier under Hitler and describing him as a murderer (Exhibit PTB, Tabs B, C and D) - defence objection to entirety - relevance and s.137;
4. 16 June 2008 and 27 June 2008 - the Accused attended with Monis at protests (involving just the two of them) at Channel 7 in Martin Place in Sydney (Exhibit PTC, Disk 2; Exhibit PTB, Tab G) - defence objection to entirety - relevance and s.137;
5. 29 November 2008 to 3 December 2008 - at the behest of Monis, communications by the Accused with the family of a recently deceased Australian Army Officer, Lieutenant Michael Fussell (Exhibit PTB, Tab H) - defence objection to entirety - relevance and s.137;
6. 12 January 2009 to 22 January 2009 - at the behest of Monis, communications by the Accused with the family of a recently deceased Australian soldier, Private Gregory Sher (Exhibit PTB, Tabs J, K) - defence objection to entirety - relevance and s.137;
7. 24 March 2009 to 27 March 2009 - at the behest of Monis, communications by the Accused with the family of a recently deceased Australian soldier, Corporal Mathew Hopkins (Exhibit PTB Tabs L, M) - defence objection to entirety - relevance and s.137;
8. 24 March 2009 to 31 March 2009 - at the behest of Monis, communications by the Accused with the family of a recently deceased Australian soldier, Sergeant Brett Till, and attendance (dressed in a black niqab) at his funeral (Exhibit PTB, Tab O) - defence objection to entirety - relevance and s.137;
9. 18 July 2009 to 21 July 2009 - at the behest of Monis, communications by the Accused with the family of a recently deceased Austrade employee, Mr Craig Senger, who had died in the bombing of the JW Marriott Hotel in Jakarta, on 17 July 2009 (Exhibit PTB, Tabs P, Q) - defence objection to entirety - relevance and s.137;
10. 19 July 2009 to 22 July 2009 - at the behest of Monis, communications by the Accused with the family of a recently deceased Australian soldier, Private Benjamin Ranaudo (Exhibits PTB, Tabs R, S) - defence objection to entirety - relevance and s.137;
11. 10 November 2009 - the Accused (dressed in a black niqab) filmed Monis' protest outside the Downing Centre in Sydney on an occasion when the two of them had appeared in the Local Court on Commonwealth charges of using a postal service to cause offence - the Accused filmed members of the media and handed out leaflets in support of Monis (Exhibit PTC, Disk 2) - defence objection to entirety - relevance and s.137;
12. 5 August 2012 to 7 April 2013 - the Accused adopted an overtly motherly role in relation to Monis' two sons at child access visits (Exhibit PTB, Annexure T) - the defence does not object to this evidence as going to motive;
13. the Accused's attendance with Monis at the deceased's residence on 13 January 2013, with members of the OMCG, to intimidate the deceased - the Accused does not object to evidence of the particular incident as going to motive, but objects to any evidence about the Accused wearing motorcycle clothing or having anything to do with members of any motorcycle club;
14. 27 January 2013 - complaint to police about Jayesh Goundar - no objection is taken by the Accused to the tender of this material on the issue of motive;
15. 10 March 2013 - complaint to police about Jayesh Goundar - no objection is taken by the Accused to the tender of this material on the issue of motive;
16. 28 July 2013 - recorded conversation between the Accused and her cousin in relation to the Commonwealth postal offences with the Accused saying with respect to the forthcoming trial of Monis and the Accused on these charges, "We are proud" and "We're excited, we're looking forward to it" - defence objection to entirety - relevance and s.137;
17. 6 September 2013 - the Accused filmed Monis outside the Downing Centre following sentencing for Commonwealth postal offences - the Accused smiled as she filmed Monis whilst he spoke to the media defending the letters which had been sent to the families of deceased Australian soldiers (Exhibit PTC, Disk 4) - defence objection to entirety - relevance and s.137;
18. 20 February 2014 - the Accused filmed Monis obtaining an apology from the Accused's ill mother, Soula Droudis (Exhibit PTC, Disk 4) - Soula Droudis had told police things critical of Monis including that he was a liar - she apologised for this to Monis with the Accused filming the event - defence objection to entirety - relevance and s.137;
19. 31 July 2014 - the Accused is alleged to have photographed Monis wearing a headband with Arabic writing which included (when translated to English) the words "We are your soldiers Muhammed" and "May Allah give him peace" - defence objection to entirety - relevance and s.137.
[9]
The Crown's Tendency Notice
Based upon the matters summarised in the preceding paragraph, the Crown's Tendency Notice dated 28 July 2016 (part Exhibit PTB) asserted a tendency on the part of the Accused over a lengthy period of time before the murder on 21 April 2013, and also after that murder. The Crown alleges that:
1. the Accused had a particular state of mind - arising from her belief in Monis' spiritual superiority, she was enthralled by Monis and had a desire to please him and to retain her relationship with him, and she adopted as her own his socially and morally reprehensible views;
2. because of this state of mind, the Accused acted in a particular way, namely that she engaged in socially and morally reprehensible acts at the behest of Monis.
The Crown contends that the tendency evidence sought to be adduced bears upon a fact in issue in the trial, namely, the identity of the person that murdered the deceased.
It is the Crown case that the murder of the deceased by the assailant, and what is said to be the ritualistic manner in which it occurred, was masterminded by Monis. The ultimate object of the murder was for Monis to obtain custody of his two sons. The Crown alleges that Monis viewed the actions of the female assailant in stabbing the deceased, and then setting her on fire, as being a punishment from God.
The Crown contends that the fact that the Accused had the tendencies referred to above, either alone or having regard to other evidence in the Crown case, was highly probative evidence in the Crown case that it was the Accused who, at the behest of Monis, stabbed to death and then set fire to the deceased.
[10]
Relevant Provisions of Evidence Act 1995
It is appropriate to set out the provisions of the Evidence Act 1995 to be considered and applied in this judgment. Sections 55 and 56 Evidence Act 1995 state:
"55 Relevant evidence
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) the credibility of a witness, or
(b) the admissibility of other evidence, or
(c) a failure to adduce evidence.
56 Relevant evidence to be admissible
(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2) Evidence that is not relevant in the proceeding is not admissible."
Section 97 Evidence Act 1995 provides:
"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."
Section 101 of the Act states:
"101 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 a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.
(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant."
[11]
Principles to be Applies on Admissibility Issues
The Crown, as the tendering party, bears the onus of establishing, on the balance of probabilities, any facts necessary for deciding that the evidence should be admitted: s.142 Evidence Act 1995.
Material tendered by the Crown for non-tendency purposes is objected to by the defence on the grounds of relevance (ss.55 and 56 Evidence Act 1995) and, if held to be relevant, upon the ground that the Court should refuse to admit the evidence as its probative value is outweighed by the danger of unfair prejudice to the Accused (s.137 Evidence Act 1995).
It is submitted for the Accused that the same material (relied upon, as well, for tendency purposes) should not be admitted on that basis, as the Crown has not demonstrated that the material has substantial probative value (s.97(1)(b) Evidence Act 1995) and, even if it had, the Crown has not established that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the Accused (s.101(2) Evidence Act 1995).
Even if the tendered evidence was held to be admissible on these tendency and non-tendency bases, it was submitted for the Accused that all of it should be excluded under s.135(c) of the Act.
Relevance and s.137 Evidence Act 1995
Consideration of relevance requires identification of the fact or facts in issue in the trial. Here the principal and critical fact in issue is whether it was the Accused who fatally attacked the deceased on 21 April 2013. The Crown contends that what is said to be the close and multi-facetted relationship between the Accused with Monis over a number of years is relevant to that critical fact in issue.
The test of relevance is a relatively undemanding one. The enquiry for the purpose of s.55 concerns how the evidence might affect findings of fact. The possible use to which the evidence might be put is to be taken at its highest: IMM v The Queen [2016] HCA 14; 90 ALJR 529 at 538 [43]-[44]. No assessment of the credibility or reliability of the evidence is required: IMM v The Queen at 537 [39].
Evidence which is relevant according to s.55 and admissible under s.56 is, by definition, probative. But neither s.55 nor s.56 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some (even slight) probative value will be prima facie admissible: IMM v The Queen at 537-538 [40].
[12]
Trial by Judge Alone - Assessment of Prejudicial Effect and Probative Value
As has been noted, determination of the admissibility issues in this judgment requires attention to be given (concerning tendency evidence) to s.101(2) Evidence Act 1995 (whether the probative value of the tendency evidence substantially outweighs any prejudicial effect) and (on non-tendency bases) to s.137 Evidence Act 1995, where evidence which the Court finds is otherwise admissible is subject to an argument that it ought be excluded because its probative value is outweighed by the danger of unfair prejudice to the Accused.
This trial is proceeding as a Judge-alone trial. In reaching a verdict, the Court must comply with the statutory obligations contained in s.133 Criminal Procedure Act 1986. There is a duty to give reasons with respect to findings of fact and principles of law, with a duty to take into account warnings required by statute or common law: Filippou v The Queen [2015] HCA 29; 256 CLR 47 at 52 [6], 66-67 [52].
There is, of course, a fundamental difference in the nature of the trial. There is no jury.
A trial Judge is required to give reasons as well for interlocutory decisions, including a decision such as the present one concerning admissibility of evidence.
It is clear that provisions such as ss.97, 101, 135 and 137 Evidence Act 1995 apply as much to trial by Judge alone as to trial by jury.
It was acknowledged on behalf of the Accused that there may be a difference between an assessment of the risk of prejudice or prejudicial effect in a trial by Judge alone, as against a trial by jury. The risk of evidence being used for an impermissible purpose, or directions not being followed or being misunderstood, are significantly decreased.
The Accused submitted, however, that there was another view - the approach to the admissibility of evidence should not be different, simply because of the nature of the identity of the fact finder.
Reference was made to a number of single-Judge decisions in this Court and in other jurisdictions where comment had been made on the application of exclusionary provisions in a Judge-alone trial: R v Gencay [2002] ACTSC 114 at [19]; Arthurs v State of Western Australia [2007] WASC 182 at [89]; R v Fairbairn [2011] ACTSC 78; 212 A Crim R 32 at 49 [91]-[92]; R v Ravindran (No. 2) [2013] NSWSC 1056 at [6]; R v Gittany (No. 2) at [22].
[13]
Submissions of the Parties
The Court was provided with detailed written submissions which were supplemented by oral submissions. It is not necessary to repeat in detail those submissions in this judgment. An overview of submissions will suffice.
The Crown Submissions
The Crown submitted that the starting point was what was said to be a very powerful (if not overwhelming) circumstantial case against Monis, which demonstrated that it was Monis who masterminded the murder of his former wife on 21 April 2013.
It was submitted that, at the time of the murder, the Accused was besotted with Monis in a spiritual sense and was dominated by him. Arising from this, the Crown argued, the Accused adopted Monis' extreme religious and political views and had an intense desire to please him.
The Crown submitted that the material was admissible for several related purposes concerning motive, relationship between the Accused and Monis, the Accused's state of mind and as tendency evidence. It was submitted that it is necessary to keep in mind the nature of the Crown's whole circumstantial case, and not to consider the potential relevance of particular pieces of evidence in isolation.
It was submitted that it was the Accused's motive to murder the deceased to clear the way for Monis and the Accused to have a single family unit including the two children of the deceased. The Crown submitted that it was appropriate to consider the entire relationship between the Accused and Monis over a number of years to assist an understanding as to why the Accused would wish to murder the deceased in April 2013.
The Crown contended that the tendered material was evidence of the Accused's motive to commit murder, namely:
1. to satisfy the desire of Monis to punish his ex-wife on God's behalf for taking away custody of his children;
2. to assist Monis in his desire to create a family which included custody of the two boys;
3. to do whatever Monis required of her in order to ensure the continuation of their de facto relationship;
4. as an act of devotion and loyalty to Monis as her spiritual guide.
The Crown submitted that the motive of the Accused arose from the whole history of her relationship with Monis over the period commencing in 2006. In order to assess the evidence of motive, it was submitted that it was essential for the Court to consider evidence of:
1. the Accused's involvement in supporting Monis in his attempts to get custody of his children;
2. the Accused's involvement in attempting to convince the deceased that she should relinquish custody to Monis;
3. the Accused's participation in the child access visits which was said to be consistent with her being in preparation to act as the mother of the two boys;
4. the support of the Accused for Monis' view that God sometimes acts through the medium of human intermediaries;
5. the Accused's apparent desire to support Monis in his extremist ventures so as to preserve their relationship.
[14]
Determination
At the outset, I stress that the conclusions hereafter expressed are reached only for the purpose of ruling on the admissibility of the tendered material. I am the tribunal of fact as well in this trial. What use is to be made of this evidence will be considered in light of all the evidence adduced in the trial, and after application of necessary directions and warnings required by law.
I accept the Crown submission that there are features of the unusual relationship between Monis and the Accused which are relevant to the principal fact in issue in the trial - whether the Crown can prove to the criminal standard that the Accused killed the deceased on 21 April 2013.
To merely note that the Accused and Monis met and commenced a relationship in about 2006 or 2007, and then move to the events surrounding access visits between mid-2012 and April 2013 would comprise an inadequate and artificial picture of their relationship, and the activities of the couple which were capable of shedding light on the principal fact in issue in the trial.
It is appropriate to set out, in chronological order, events which the Crown relies upon as arising from the tendered material. Nearly all of these events do not appear to be in contest as events which actually occurred.
The Accused has a Greek Orthodox background. Having met and commenced a relationship with Monis in about 2007 (when she was about 28 years old), she converted to Islam and changed her name to Amirah Droudis in 2008. Her daughter was converted to Islam as well. The Crown says that it ought be inferred that these steps occurred at the behest of Monis, himself a Muslim.
In 2007-2008, the Accused participated in 11 videos designed for the Sheikh Haron website (see 34 above). The strong content of these videos is said to have been scripted by Monis, and delivered with feeling and a level of dramatic emphasis by the Accused. She was dressed in a black niqab in all videos. The Crown argues that it ought be inferred that not only has Monis converted the Accused to Islam, but that he was using her as a vehicle to express extremist views supportive of terrorism, and the use of violence with the Accused manifesting an adoption of Monis' beliefs in this respect.
On two occasions in June 2008, the Accused and Monis conducted a protest outside the premises of Channel 7 in Martin Place, Sydney, apparently arising from something that was said on a Channel 7 program concerning terrorism (see above). The Accused is dressed in a black niqab. Each protest is filmed by one or other of the Accused and Monis. The Sheikh Haron website publicised in advance the fact that "Sister Amirah" was to undertake such a protest. The Crown says this is a further variation of conduct on the part of the Accused undertaken at the behest of Monis, with the Accused echoing publicly the grievances of Monis.
[15]
Summary of Findings
I now draw together my conclusions, applying the principles set out earlier to the different types of evidence.
Non-Tendency Uses
I have applied the principles set out at [47]-[56] and [78]-[95] above. I am satisfied that the tendered evidence is relevant for the purposes of ss.55-56 Evidence Act 1995 to the resolution of the principal fact in issue in the trial.
In the manner which I have outlined, the nature and dynamics of the relationship between Monis and the Accused are relevant, with the various events in the period 2007-2014, being capable of shedding considerable light upon the alleged motive of the Accused (and Monis) and the state of mind of the Accused in acting in different ways at the behest of Monis. The evidence forms part of a multi-facetted circumstantial case which the Crown advances.
For the purposes of s.137, I am not satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice to the Accused. I am satisfied that the probative value of the evidence is substantial. I have kept in mind the forms of prejudice, including procedural prejudice, which may arise for the purpose of identifying any danger of "unfair prejudice".
As I have said, the material is confronting in a number of ways, and is damaging to the Accused. The Court will approach this material in the trial in a manner which keeps it in perspective, and uses it in accordance with appropriate directions.
I am satisfied that the evidence should be admitted for non-tendency purposes in the trial.
Tendency Purposes
I have applied the principles set out at [61]-[95] above. The evidence can only be used for tendency purposes if the requirements of ss.97 and 101(2) are met.
The relevant tendencies are those relied upon by the Crown (at [35] above). I am satisfied that the evidence has significant probative value for the purpose of s.97(1)(b). In reaching this view, I have had regard to not only this tendered evidence, but also other evidence which the Crown will adduce in the trial in support of the circumstantial case against the Accused. I am satisfied that the evidence may be used in support of the tendencies asserted by the Crown by reference to the conduct of the Accused. The evidence will be influential in the context of fact finding.
[16]
Conclusion
It was for these reasons that I made the ruling on 12 August 2016 determining to admit the evidence at trial (see [18] above).
[17]
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: 29 September 2016
The Crown proposes to lead evidence from occupants of the apartment block, including a neighbour who heard the attack upon the deceased and made certain observations to the effect that the assailant was a woman wearing a garment in the nature of a "hijab", where the upper body was covered except for the face and hands (Crown Case Statement, Exhibit PTA, paragraphs 39-40).
The Accused has given notice of alibi under s.150 Criminal Procedure Act 1986. That notice states that the Accused was at premises at Belmore at the time of the killing in Werrington.
The principal issue in the trial will be whether the Crown can prove beyond reasonable doubt that it was the Accused who attacked and killed the deceased in the stairway of the Werrington apartment block on the afternoon of Sunday, 21 April 2013.
The Crown Case Statement expanded upon the alleged activities of the Accused said to have been carried out at the behest of Monis (Exhibit PTA, paragraph 66-70, footnotes excluded):
"66. From around 2007, MONIS began to present himself publicly as Sheikh HARON. As Sheikh HARON, MONIS promoted his viewpoint on world affairs, including his extreme religious and political beliefs, with the assistance of DROUDIS, who used the name 'Sister Amirah'. MONIS also launched his own website, www.sheikhharon.com. DROUDIS appeared in a number of videos as Sister Amirah. In these videos, DROUDIS is seated before the video camera wearing a black niqab. The veil of the niqab hides the lower half of her face. She identifies herself as a person who converted to Islam after the teachings of Sheikh Haron and says that she is honoured to be the spokesperson for the Sheikh HARON website. It is the Crown's case that these videos were directed by MONIS. In the videos DROUDIS espouses the extreme religious and political views of MONIS.
67. DROUDIS speaks about the Holocaust, the World Trade Centre Attack and the Bali bombings as being God's retribution carried out through 'a facility' - and that 'mankind is the facility'.
68. DROUDIS also calls upon Muslims to do their Islamic duty and attack president elect Barack Obama because he is an apostate who had decided to hide his religion for political reasons. DROUDIS says 'Do not miss your opportunity. Do your Islamic Duty and finish it. Finish it. Finish it', while making a stabbing motion.
69. DROUDIS also made a number of telephone calls to the family members of Australian Defence Force personnel who died in Afghanistan seeking to obtain or confirm postal details so that a 'condolence' letter could be sent. Letters were later received by these families from Sheikh Haron (MONIS) which letters, for example, referred to the soldiers as murderers and 'a thousand times worse than a pig'. DROUDIS participated in a video sent to [the] widow of one of the [deceased soldiers], comparing the deceased soldier to a Nazi soldier and suggesting that he was a murderer.
70. On 31 March 2009, DROUDIS attended the funeral of Sergeant Brett TILL dressed in a black niqab. DROUDIS approached Mrs Breeanna TILL, Sergeant TILL's widow, introduced herself as Sister Amirah, and stated she was there to deliver a message. DROUDIS attempted to hand deliver a package containing letters from Sheikh Haron (MONIS) to Mrs TILL, however the package was intercepted by an Army officer. Later, comments were posted on the Sheikh Haron website regarding this incident. During a subsequent search warrant, hand-written records were located, which stated that 'Soldier Sister Amirah on behalf of Sheikh Haron' and 'Sheikh Haron's representative' attended the funeral of Brett TILL."
With respect to contact made with relatives of deceased Australian soldiers, the Crown says (Exhibit PTA, paragraph 74):
"In October 2009, MONIS and DROUDIS were charged with offences contrary to Section 471.12 Criminal Code 1995 (Cth) which involved using a postal service to send offensive letters to the family members of deceased Australian soldiers who had died in Afghanistan. DROUDIS was charged with aiding and abetting MONIS. DROUDIS continued to be besotted by MONIS and to act under his control and direction. At MONIS' direction DROUDIS filmed MONIS during a protest outside the Downing Centre Local Court on 10 November 2009. Both ultimately entered guilty pleas and were sentenced on 6 September 2013. DROUDIS, directed by MONIS, smiled as she took video footage of MONIS while he spoke to the media outside the court after the sentencing."
The Crown Case Statement asserted with respect to the use of fire (Exhibit PTA, paragraphs 71 and 73, footnotes excluded):
"71 In February 2009 MONIS suggested that the February 2009 Victorian bushfires were God's punishment because the Australian government did not oppose the execution of the Bali bombers.
…
73 It is the Crown's case that MONIS saw fire as a form of God's retribution, and that DROUDIS was following MONIS's instructions as to the mode of killing when she stabbed the deceased and then set fire to her."
Some reference should be made to the Crown's history of the custody dispute between the deceased and Monis. This material is drawn from the Crown Case Statement.
The deceased had ended her relationship with Monis in June 2011. In August 2011, Monis commenced proceedings in the Federal Magistrate's Court (as it then was) seeking full custody of the two children. On 10 May 2012, a family consultant's report (ordered by the Court) recommended that the deceased have parental responsibility, with Monis to have visitation rights (Exhibit PTA, paragraph 75-82).
On 5 July 2012, Monis sent a letter to the presiding Federal Magistrate complaining about the custody proceedings (Exhibit PTD). Monis stated that he wanted to withdraw his case from the Federal Magistrate's Court and that he had filed his complaint "in God's court". He said that "God is the decision maker, not you". Monis continued "… if you order that the children must live with their mother, but if God decides that the children live with someone else, the children will not live with their mother" (Exhibit PTA, paragraph 84).
Thereafter, on 24 August 2012, the Federal Magistrate's Court granted full custody to the deceased with Monis given visitation access every second Sunday between 10.00 am and 4.00 pm. In October 2012, Monis provided the Werrington address as the location for exchange of the children on access visits (Exhibit PTA, paragraph 88).
The Crown Case Statement states with respect to access visits (Exhibit PTA, paragraphs 91-92, footnotes excluded):
"91. Child access visits pursuant to the Family Court proceedings final order commenced on 21 October 2012. The children were taken to Werrington to visit MONIS in accordance with these Orders. Every child access visit was video recorded by MONIS to varying extents. MONIS consistently (and covertly) video recorded the drop off and pick up of the children at his residence.
92. In relation to these visits, DROUDIS and her [xxx] old daughter were present at each of the twelve visits MONIS had with the children between 21 October 2012 and 7 April 2013. The last visit prior to 21 April 2013 was 7 April 2013. Videos taken during these child access visits show MONIS, DROUDIS and the three children undertaking a variety of family outings, with DROUDIS performing a motherly role at MONIS' encouragement. During the video recordings of the visits the children can be heard, at MONIS' encouragement, refer to Droudis as 'mummy'. In the videos MONIS is either filming himself or directing DROUDIS to film."
To assist an understanding of references to Monis' association with the Rebels Outlaw Motorcycle Gang ("OMCG"), I note this part of the Crown Case Statement (Exhibit PTA, paragraphs 101-105, footnotes excluded):
"101 In early 2012, MONIS began associating with the Rebels Outlaw Motorcycle Gang (Rebels OMCG), firstly with the Mt Druitt chapter and later with the Ingleburn chapter. MONIS expressed a desire to become a nominee so that he could become a full member of the Rebels OMCG. MONIS regularly attended the Mt Druitt Clubhouse on Friday evenings for social gatherings. In September 2012, MONIS acquired a Harley Davidson motorcycle.
102 In early 2013, MONIS approached members of the Rebels OMCG on two occasions soliciting assistance to have an unnamed ex-partner killed. On the first occasion, MONIS approached Rebels members at the Mt Druitt clubhouse and stated that he wanted to have a woman 'done in' and that he would pay to have it done. MONIS had stated that he was going to lose everything if she 'went through with it', a comment that the witness took to be a reference to a divorce. It was evident to this witness that MONIS wanted to have a woman killed. MONIS's approach was rebuffed.
103 The second approach occurred a couple of months later, also at the Rebels OMCG clubhouse in Mt Druitt. MONIS approached some members and raised the topic again. MONIS said words along the lines of, 'I've got a problem with my ex. She's going to take my money and my kids. I'm going to do her in. Can you give me a hand?' Again MONIS' approach was rebuffed. MONIS later approached people individually about wanting to kill her and about wanting to get knives and guns.
104 The Crown relies on MONIS's interactions with the Rebels OMCG to demonstrate a desire on his part to bring about [the deceased's] death in the months preceding her murder on 21 April 2013. The Crown case is that having failed to solicit anybody from the Rebels, MONIS directed DROUDIS to carry out the killing of [the deceased].
105 During the child access visit on 13 January 2013, MONIS, DROUDIS and the two boys drove from the Werrington Unit to the [family residence of the deceased's family] in the company of two other males on motorcycles, purportedly to collect clothing belonging to MONIS, but on the Crown case this was an attempt to intimidate [the deceased] into allowing MONIS to have custody of the children. One of these males was a member of the Mt Druitt chapter of the Rebels OMCG. [The mother of the deceased] was concerned and contacted the police, who attended a short time later. [The deceased] returned to the premises while police were present and demanded that action be taken in relation to the incident. No criminal offences were identified however the other parties were informed that they were not welcome back at the premises."
Sections 135 and 137 Evidence At 1995 state:
"135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.
…
137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."
In considering a relevance objection to a piece or pieces of evidence which are said to form part of a circumstantial case, it is appropriate to bear in mind what was said by the Court of Criminal Appeal (Bathurst CJ, Hoeben CJ at CL and Simpson J) in Elomar v R [2014] NSWCCA 303; 316 ALR 206 at 258 [240]:
"The very point of a circumstantial case, as this was, is that it creates a mosaic of sometimes apparently tiny items of evidence, that, when put together, make up a whole picture. The tiniest fragment of evidence might, on completion of the mosaic, be shown to have significant relevance. It is a mistake, particularly in a circumstantial case, to attempt to determine the relevance of each individual item of evidence in isolation from all of the other evidence."
Evidence may be relevant to the state of mind of an accused person, but not as tendency evidence. In Elomar v R, the Court of Criminal Appeal said at 280 [369]:
"If it could reasonably be inferred from the evidence of his attendance at the camp, and the nature of the camp, that he had a state of mind that favoured militant Islamic Jihad, it may equally be reasonably inferred that he continued to have that state of mind up to and beyond 2004. That is not tendency evidence and does not give rise to tendency reasoning."
Section 137 is expressed in terms of an evaluative judgment mandating exclusion: IMM v The Queen at 534 [15]. Section 137 requires the "probative value" of the evidence to be weighed against the danger of unfair prejudice to the Accused. This requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue: IMM v The Queen at 538 [47].
The danger of "unfair prejudice" in s.137 Evidence Act 1995 directs attention to the risk that evidence may be misused in some unfair way by the tribunal of fact (usually a jury) so that the jury may not comply with judicial directions as to its use: Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at 325 [91]; R v Clark [2001] NSWCCA 494; 123 A Crim R 506 at 582-584 [163]-[165]. There must be a risk that the evidence will damage the defence case in some unacceptable way, such as provoking some irrational, emotional or illogical response or by giving the evidence more weight than it truly deserves: BJS v R [2013] NSWCCA 123; 231 A Crim R 537 at 549-550 [51].
The existence of competing inferences (or alternative interpretations), available to be drawn from the proposed prosecution evidence, plays no part in the assessment of probative value for the purpose of s.137: R v Burton [2013] NSWCCA 335; 237 A Crim R 238 at 280 [196].
There is an additional feature in this trial which calls for attention. This is a Judge-alone trial. There is no jury. This aspect will be addressed a little later in the judgment by reference to ss.101 and 137 of the Act (see [78]ff).
Rulings with respect to evidence tendered for non-tendency purposes will require application of these principles concerning relevance and s.137 of the Act.
Section 135 Evidence Act 1995
A submission was made for the Accused that a further basis for exclusion of the tendered evidence arose under s.135(c) of the Act. It was submitted that, even if the evidence was otherwise admissible, it should be excluded as its probative value was substantially outweighed by the danger that the evidence might cause or result in undue waste of time. It was submitted that this provision operated in the same way in a Judge-alone trial: R v Gittany (No. 2) [2013] NSWSC 1599 at [23].
Section 135 is based upon an assumption that the evidence is otherwise admissible. It confers a power to refuse to admit such evidence if the particular statutory opinion is formed. A discretionary process is involved, with the formation of the relevant opinion requiring a balancing exercise. The power to reject evidence will only be engaged if the probative value of the evidence is "substantially outweighed" by a "danger" of the kind identified in s.135(a), (b) or (c): Dyldam Developments Pty Limited v Jones [2008] NSWCA 56 at [78].
In Dyldam Developments Pty Limited v Jones, Basten JA observed at [93] that the apparent purpose of s.135(c) was to allow a trial Judge to avoid an inappropriate expansion of the trial caused by the parties tendering, and then seeking to meet, evidence of slight or peripheral relevance to the facts in issue. His Honour observed (at [93]) that "once it is accepted that the probative value of the proffered evidence is significant or substantial, there may be limited scope for exclusion on the basis of a danger of 'undue waste of time'".
I am satisfied that s.135(c) has equal application to a Judge-alone trial as to a jury trial, although it may be appropriate to take into account, as well, the likely slower pace which may apply to the adducing of evidence before a jury.
Tendency Evidence - ss.97 and 101 Evidence Act 1995
The Crown tenders the same body of evidence for tendency purposes as well. If evidence is admissible for a non-tendency purpose, it cannot be used for tendency purposes unless the requirements of ss.97 and 101 are met: s.95 Evidence Act 1995.
There is no issue in this case concerning compliance by the Crown with the reasonable notice requirement. Accordingly, s.97(1)(a) need not be further addressed.
Tendency evidence is a species of circumstantial evidence: Elomar v R at 277 [356]. Elsewhere in Elomar v R, it was said at 278 [359]:
"Tendency evidence is a stepping stone. It is indirect evidence. It allows for a form of syllogistic reasoning."
In Elomar v R, the Court of Criminal Appeal said at 260 [253]:
"Tendency evidence is evidence tendered to establish that a person has or had a tendency to act in a particular way or to have a particular state of mind. It is evidence that is tendered in order to provide the foundation for an inference that, because the person has or had that tendency, it is more likely that he or she behaved in a particular way, or had a particular state of mind at a time or in circumstances relevant to the issues in the dispute: see Gardiner v The Queen [2006] NSWCCA 190; 162 A Crim R 233 at [124]."
The Court of Criminal Appeal continued in Elomar v R at 278 [360]:
"The process of reasoning is:
• on an occasion or occasions other than an occasion in question in the proceedings, a person acted in a particular way;
• it can therefore be concluded or inferred that the person had a tendency to act in that way;
• by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person acted in conformity with that tendency.
Alternatively:
• on an occasion or occasions other than on an occasion in question in the proceedings, a person had a particular state of mind;
• it can therefore be concluded or inferred that the person had a tendency to have that state of mind;
• by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person's state of mind conformed with that tendency.
Tendency evidence is a means of proving, by a process of deduction, that a person acted in a particular way, or had a particular state of mind, on a relevant occasion, when there is no, or inadequate, direct evidence of that conduct or that state of mind on that occasion."
In considering the probative value of evidence under s.97(1)(b), an assumption of the jury's acceptance of the evidence must be made. No question of the credibility or reliability of the evidence can arise: IMM v The Queen at 539 [52].
As it happens, nearly all of the evidence relied upon by the Crown (which is the subject of this judgment) is in video, audio or documentary form (see [34] above). It does not appear that there would be any issue of credibility or reliability about that material in any event.
With respect to the concept of "significant probative value", the word "significant" means important or of consequence - it requires more than mere relevance: R v Lockyer (1996) 89 A Crim R 457; Hughes v R [2015] NSWCCA 330 at [163]. The evidence must be influential in the context of fact finding: IMM v The Queen at 538 [46].
As the terms of s.97(1)(b) make clear, an assessment of whether the evidence has "significant probative value" is not confined to the evidence itself, but is to be made having regard to all the evidence sought to be adduced by the tendering party (the Crown): BC v R [2015] NSWCCA 327 at [82]-[83]. What must be assessed is the role that the evidence, if accepted, would play in the resolution of the disputed fact - its capacity to contribute to that resolution: DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758 at 774 [72]; BC v R at [83].
In IMM v The Queen, the High Court said at 538 [45]:
"The use of the term 'probative value' and the word 'extent' in its definition rest upon the premise that relevant evidence can rationally affect the assessment of the probability of the existence of a fact in issue to different degrees. Taken by itself, the evidence may, if accepted, support an inference to a high degree of probability that the fact in issue exists. On the other hand, it may only, as in the case of circumstantial evidence, strengthen that inference, when considered in conjunction with other evidence."
Application of the "significant probative value" test calls for a focus on the fact in issue, the probability of the existence of which the evidence is said to cast light. The fact in issue here is whether it was the Accused who fatally attacked the deceased on 21 April 2013.
I note that in Hughes v R at [182], the Court of Criminal Appeal said that an assessment of significant probative value involved consideration as to whether there is a real possibility of an alternate explanation consistent with innocence.
It is appropriate to consider the level of generality of the stated tendency for the purpose of assessing significant probative value: R v Ford [2009] NSWCCA 306; 201 A Crim R 451 at 468 [53]; Sokolowskyj v R [2014] NSWCCA 55; 239 A Crim R 528 at 537-538 [40].
The evidence need not demonstrate a tendency to commit a particular crime. It is not necessary for the acts relied upon to be rare or unusual: Aravena v R [2015] NSWCCA 288 at [87]. There is no need for there to be a striking pattern of similarity between the incidents: R v Ford at 485 [125]. However, qualitative differences in conduct are relevant: Sokolowskyj v R at 538 [41]-[43]; BC v R at [78]-[81].
The second step, being a s.101(2) assessment, calls for consideration of probative value and prejudicial effect to determine whether the probative value of the evidence substantially outweighs any prejudicial effect the evidence may have on the Accused.
Reference was made at [52]-[53] above to principles applicable to "unfair prejudice" in s.137. In DAO v R [2011] NSWCCA 63; 81 NSWLR 568 at 597 [150], Simpson J observed that the term "prejudicial effect" in s.101(2) is a reference to evidence being used against an accused person for a purpose other than that for which it is admitted. In R v Ford, at 469 [58], Campbell JA addressed the topic of prejudice under s.101(2) of the Act in the following way:
"The same concept, of evidence being prejudicial if it involves a risk of an unfair trial, has been adopted in relation to section 101(2). In R v RN [2005] NSWCCA 413, this Court (Sully J, with whom Grove and Howie JJ agreed) adopted, as expressing the essence of the task called for by section 101(2), the statement by McHugh J in Pfennig v The Queen (1995) 182 CLR 461 at 528-9:
'If there is a real risk that the admission of such evidence may prejudice the fair trial of the criminal charge before the court, the interests of justice require the trial judge to make a value judgment, not a mathematical calculation. The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial'."
The statutory formula in s.101(2) must be applied to the case at hand, but the fact that the trial is proceeding before a Judge without a jury is a relevant factor also, for reasons to which I will now turn.
It was submitted, as well, for the Accused that there may be procedural prejudice in the sense of an unfair forensic difficulty caused by the evidence. I will return to this argument when referring to the defence submissions.
The differences between trial by jury and trial by Judge alone have been recognised by the law in the area of contempt. The courts now recognise that it would be wrong to hold that a publication constitutes a contempt because it may influence a judicial officer. This is because judicial officers, by their training and experience, are expected to put aside prejudicial remarks and material: Attorney General for NSW v John Fairfax & Sons Limited and Bacon (1985) 6 NSWLR 695 at 709 ("John Fairfax and Bacon") (per McHugh JA). It has been said that Judges are more capable than jurors of putting aside prejudicial matter, including public prejudice, and that "objectivity and independence are the qualities which judges are expected to bring to judicial determination": Victoria v Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; 152 CLR 25 at 102 ("BLF Case") (per Mason J).
There is force in the view that similar reasoning applies to the assessment to the risk of prejudice for the purpose of provisions such as ss.101 and 137 Evidence Act 1995. This is not to say that these provisions have no real application when a trial is by Judge alone. Rather, it is to acknowledge that trial Judges have the training, experience and qualities referred to by McHugh JA in John Fairfax and Bacon and by Mason J in the BLF Case.
From time to time, an order for trial by Judge alone may be made because of the existence of a substantial volume of prejudicial evidence. Implicit in such an order is the acceptance that a Judge sitting alone will be equipped to determine the trial on the merits, keeping the prejudicial material in proper perspective: R v Simmons; R v Moore (No. 4) [2015] NSWSC 259 at [114]-[117]; Redman v R [2015] NSWCCA 110 at [19].
It is the case, of course, that Judges (sitting without a jury) or Magistrates determining criminal proceedings may exclude evidence on one basis or another during the course of the trial. Thereafter, the Judge or Magistrate will reach a verdict by reference to the admitted evidence. Although the judicial officer has seen or heard the excluded evidence, the hearing proceeds with the verdict to be reached by reference only to the evidence admitted in the trial. This is a practical illustration of the training, experience and qualities of judicial officers in operation, with a verdict to be reached by reference to the admitted evidence only, although the Court has become aware of the excluded material.
Further, Judges are required to give reasons for an interlocutory decision admitting evidence. In addition, the trial Judge (at a Judge-alone trial) is required to make findings of fact and to give directions of law as to use of evidence, and set out any necessary warnings, as part of reasons for reaching the ultimate verdict.
The obligation to give reasons is, of course, a fundamental difference between criminal trials by jury and trials by Judge alone. This obligation serves a number of purposes, which include a practical demonstration as to how the Court has guarded against "prejudicial effect" (s.101) or "unfair prejudice" (s.137) which might have a stronger foundation at a jury trial. As Martin CJ observed in Arthurs v State of Western Australia at [89], the duty of the trial Judge to give reasons will allow the parties, the community and (where necessary) an appeal court to evaluate whether emotion may have influenced the Court's decision.
The importance of the duty to give reasons, as part of the judicial function, was referred to in Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713; 222 A Crim R 106 at 123-124 [62]-[64]:
"62 The Hon AM Gleeson AC returned to the function of reasons in a later paper, entitled 'The Judicial Method: Essentials and Inessentials' (2010) 9 The Judicial Review 377 at 384:
'The third essential is giving reasons for a decision. Reasons serve a number of purposes. They promote good decision-making by requiring a decision-maker to explain and justify an outcome. They inform a losing party of the reason for failure. They allow an appellate court to identify possible error and correct possible injustice. They inform the public of the way judicial power is exercised. The adequacy of a statement of reasons for a decision is judged by reference to these purposes.'
63 The former Chief Justice touched upon another important principle at 387:
'It is a corollary of the rule of law that, in the administration of civil or criminal justice, the outcome of a case should depend as little as reasonably possible upon the random factor of the identity of the judicial decision maker.'
64 Apart from the traditional reasons underpinning the requirement for reasons to be given for judicial decisions, Meagher JA identified in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 442 a further benefit from the requirement:
'The requirement to provide reasons can operate prophylactically on the judicial mind, guarding against the birth of an unconsidered or impulsive decision. It enhances judicial accountability'."
Of course, the adequacy and correctness of reasons remain to be considered in the particular case. The point in mentioning these statements here is to emphasise the important differences between trial by jury and trial by Judge alone flowing from the judicial duty to give reasons.
I approach this judgment upon the basis that the provisions in ss.101(2) and 137 have application and operation at a Judge-alone trial, but that the Court should keep in mind, in considering the issue of prejudicial effect, the important differences between the two forms of trial, and the checks and balances which operate at a Judge-alone trial, in particular by way of the duty to give reasons.
In circumstances where the defence accepted that Monis wished his former wife dead (and with Monis and the Accused to benefit from that act), it was submitted that it was necessary to look at the entire relationship between Monis and the Accused.
A similar argument was put with respect to the suggested admissibility of the evidence of the relationship between the Accused and Monis and the further step of the relationship between those two persons and the deceased. This was said to be capable of shedding light upon the Accused's state of mind.
The Crown submitted that Monis' beliefs included that God exacted retribution through the medium of human beings and that fire was a mode of God's punishment.
It was submitted that the evidence was admissible for tendency purposes as well, given what was said to be a pattern of conduct by the Accused in complying with Monis' wishes involving her conversion to Islam, her direct assistance to Monis in making some 11 extreme videos for his website, her assistance in contacting families of former Australian servicemen and her assistance in protests undertaken publicly by Monis.
The Crown contended that the evidence reveals a tendency on the part of the Accused to do the bidding of Monis, in whatever manner he desired, including acts of illegality and acts that were socially and morally reprehensible.
It was submitted that tendency evidence can be admitted in circumstances where it bears both similarities and dissimilarities, so long as it has significant probative value. Here, the Crown said it relied upon a number of disparate acts by the Accused over a long period of time to show her willingness to do the bidding of Monis, no matter what those acts might be. It was said that the common thread that ran through the Accused's actions is that they are demonstrative of the tendencies asserted by the Crown (at [35] above). It was submitted that the length of time over which the acts were performed, and the variety of the acts which the Accused was prepared to perform at the behest of Monis, strengthened the conclusion that the Accused had the asserted tendencies.
The Crown argued that other evidence in the Crown case includes overwhelming evidence that the female assailant who stabbed the deceased, and set her on fire, acted at the behest of Monis.
It was submitted that this evidence had significant probative value even though there was a difference between the particular acts of the Accused in the earlier incidents and the act alleged of murdering the deceased. It was submitted that there were religious and ritualistic overtones surrounding the act of murder itself, which could be taken into account for the purpose of determinations under ss.97 and 101 Evidence Act 1995.
The Crown submitted that the evidence was relevant for a number of purposes and should not be excluded under s.137, particularly as this is a Judge-alone trial. The Crown submitted that the requirements of admissibility of tendency evidence under ss.97 and 101(2) were made out here so that the evidence ought be allowed on that basis as well.
Submissions for the Accused
The defence accepted that some parts of the evidence were admissible for particular purposes (see 34, (l)-(o) above). However, objection was taken to the balance of the material which the Crown sought to rely upon.
With respect to the Crown reliance on motive, state of mind and relationship or context evidence, it was submitted that the evidence objected to was not relevant for the purposes of s.55 Evidence Act 1995. Even if it was capable of being relevant, it was submitted that it ought be excluded in the exercise of discretion under s.137 of the Act.
It was submitted that there is no evidence that the killing was motivated by any religious or political beliefs. Rather, the circumstances indicated a far more worldly and selfish plan by Monis to rid himself of the deceased, in order to obtain custody of his children and make money from an insurance claim at the same time. It was submitted that there was no support for the Crown submission that the killing had ritualistic features nor was there evidence concerning the suggested significance of fire.
It was submitted that procedural prejudice arose, for the purposes of ss.101(2) and 137, because:
1. most of the tendered evidence is inherently highly prejudicial, since it involves criminal conduct, conduct involving bad character or otherwise "socially and morally reprehensible conduct" or attitudes;
2. the volume of the material is very high, and is likely to constitute a very large proportion (if not the majority) of the evidence in the trial;
3. given the sheer volume and lack of probative value of the evidence, it may be given more weight and more significance than it deserves;
4. the evidence, particularly the vision of the Accused in a niqab apparently making a stabbing motion (in the Barak Obama fatwa video) is likely to have at least a subconscious impact upon the finder of fact.
It was submitted that the correct approach to the question of unfair prejudice in a Judge-alone trial is to proceed on the assumption that the Judge will understand and follow directions as to the proper use of evidence.
It was submitted, however, that it should not be assumed that Judges are immune from the emotional impact of evidence, and the subconscious effect of highly prejudicial evidence such as evidence of past bad character or uncharged heinous conduct. It was argued that this danger cannot be eliminated by directions or ameliorated by the requirement to give reasons. It was said that this was particularly so where the Judge is required to assess the demeanour and credibility of an accused person, or to draw inferences about the intentions, feelings or state of mind of an accused person.
The Accused submitted that the nature and content of the tendered material was such that the danger of unfair prejudice was extremely high and was not substantially outweighed by its probative value.
A substantial part of the defence argument related to the Crown's tender of the material as tendency evidence. It was submitted that the Crown had a number of difficulties in this respect including the passage of time since the events sought to be relied upon, the generality of the tendency alleged by the Crown and the lack of similarity between the past conduct relied upon and the conduct involved in the murder itself. It was submitted that the Court would not admit the evidence for tendency purposes in this trial.
If the Court ruled against the Accused with respect to ss.55-56, 97, 101 and 137, the Accused submitted that the evidence should be excluded under s.135(c) as its probative value was substantially outweighed by the danger that the evidence might cause or result in undue waste of time.
On multiple occasions between May 2008 and November 2009, the Accused and Monis communicated with the families of six deceased Australian soldiers and expressed extreme views concerning the circumstances in which these soldiers died and why (see 34, (e), (f), (g), (h), (j)). Activities include the writing of offensive letters, the making of a video where the Accused reinforces orally the message being sent to the family of a deceased soldier and attendance by the Accused (dressed in a black niqab) at the funeral of a deceased soldier. The Crown says that this represents a further variation of extreme activities being undertaken by the Accused at the behest of Monis, with the Accused being an active participant in espousing Monis' beliefs.
Following the bombing of the JW Marriott Hotel in Jakarta on 17 July 2009, the Accused communicated between 18 and 21 July 2009 in an offensive manner with the family of an Austrade employee killed in that bombing (see 34 above). The Crown says that this is an example of the Accused acting (promptly), at the behest of Monis, to espouse Monis' extreme views in this different context, the murder of an Australian official in a terrorist attack in Indonesia.
On 10 November 2009, the Accused and Monis appeared at the Downing Centre Local Court with respect to Commonwealth charges (laid in October 2009) under the Criminal Code (Cth) arising from postal communications with the families of deceased soldiers (see [24] above). Outside Court, the Accused filmed members of the media and handed out leaflets in support of Monis (see 34 above). The Crown says that this demonstrates continuing strong adherence by the Accused to Monis' beliefs, which had by that time brought them both before a criminal court, and her willingness to act to assist him in public to further these beliefs.
From August 2011, proceedings were before the Federal Magistrates Court concerning the custody of the two young children of Monis and the deceased. In July 2012, Monis wrote to the Court indicating that he withdrew the case from that Court and had filed his complaint "in God's court" and that "God is the decision maker …" and that the children would live where God decided (see [28] above).
In August 2012, the Federal Magistrates Court granted the deceased full custody of the children, with Monis to have access rights. On multiple access visits undertaken thereafter up to 7 April 2013 (which were filmed by Monis), the Accused was present with Monis, his two children and usually the Accused's daughter as well (see [30], 34 above). Monis' children at times refer to the Accused as "Mummy". The Crown says that this demonstrates an ongoing relationship which has moved to a level where Monis, the Accused and their respective children are acting as a family, and that this sheds light upon what Monis and the Accused intended with respect to the deceased.
On 13 January 2013, Monis and the Accused attend the residence of the deceased where they are joined by members of the Rebels OMCG (with which Monis had been associated) (see [31] and 34 above). The Crown says that it should be inferred that the purpose of this activity was to intimidate the deceased.
On 27 January 2013 and 10 March 2013, complaints are made by the Accused to police about the conduct of the then partner of the deceased (see 34, (o) above). The Crown relies upon this as further conduct designed to pressure the deceased.
On 21 April 2013, the deceased is killed in the apartment block at Werrington.
On 28 July 2013, the Accused spoke to her cousin by telephone concerning the upcoming hearing of the Commonwealth charges arising from communications by Monis and the Accused with the relatives of the deceased Australian servicemen. With respect to the forthcoming trial, the Accused is heard to say, "We are proud" and "We're excited, we're looking forward to it" (see 34 above). The Crown says that this points to adherence by the Accused to Monis' extremist beliefs, with the Accused continuing to hold the beliefs which underpinned her actions towards the relatives of deceased Australian soldiers in 2008 and 2009.
On 6 September 2013, after Monis and the Accused had been sentenced for the Commonwealth offences, the Accused filmed Monis outside the Downing Centre. The Accused smiled as she filmed Monis whilst he spoke to the media defending the letters which had been sent to families of deceased servicemen (see 34 above). The Crown says that this points to a continuing adherence to Monis' extremist views and a willingness to act at his behest as a photographer capturing the event.
On about 20 February 2014, the Accused filmed her ill mother, Soula Droudis, making an apology to Monis for things which the mother had said to police about him, including her saying he was a liar (see 34 above). The Crown says this illustrates a continuing preparedness on the part of the Accused to act at Monis' direction, even where the incident involved her own mother apparently being required to apologise to Monis and with the Accused acting as the photographic recorder of the event.
On 31 July 2014, a photograph is taken of Monis wearing a headband containing Arabic writing, which translates to "We are your soldiers Muhammed" and "May Allah give him peace" (see 34 above). The Crown says that this photograph was taken by the Accused and that it demonstrates her ongoing commitment to support Monis in his extremist views.
There is force in the Crown submission that these events, spread out over several years, are capable of being treated as evidence of the willingness of the Accused on different occasions, and in different ways, to act at the behest of Monis and espouse his extremist views, thereby engaging in socially and morally reprehensible acts. The various events may be treated as evidence of a continuing attitude, or state of mind of the Accused over a period from about 2007 to April 2013. The events which occurred after April 2013 support an argument that the Accused continued to hold these beliefs, drawn from Monis' own extreme views. There was no evidence at the pretrial hearing that the Accused had abandoned these views.
The events which occurred between 2007 and 2012 should also be considered when looking at the evidence of the apparently close relationship between Monis, the Accused and their children in the months leading up to the killing of the deceased on 21 April 2013.
It might be said that the issues in dispute in this trial are, in a practical sense, relatively narrow. The defence approaches the trial upon the basis that there is ample evidence that Monis wished the deceased dead, and arranged for her to be killed to facilitate his access and control over the two children of the former marriage.
This is not a trial where an issue will be raised whether the deceased was the victim of some random act of murder, or a murderous act unrelated to Monis.
I have kept in mind the nature of the Crown's circumstantial case against the Accused (as outlined in the Crown Case Statement) which involves many components to be considered together, and not in isolation, for the purpose of determining the present admissibility issues.
There is a substantial volume of evidence of the relationship between the Accused and Monis, which had been on foot for some time, and which had strong and close features in the weeks leading up to the killing on 21 April 2013. In the period between December 2012 and 7 April 2013, Monis was filming access visits where he and the Accused spent recreational time with the two children and the Accused's daughter. The Crown case in this respect suggests a very close relationship between Monis and the Accused, with that relationship being capable of benefitting from the death of the deceased.
The Crown will submit that an inference should be drawn that it was the Accused who murdered the deceased at the request of Monis, for the purpose of advancing their mutual interest. The defence will contend that the prosecution has not proved beyond reasonable doubt that it was the Accused who murdered the deceased, with other scenarios to be explored in the trial in that respect and with the Accused to rely on alibi.
The Crown submits that the relationship between Monis and the Accused, and what are said to be its unusual features, bear upon the issue of motive. Motive is relevant to the question whether the Accused committed the offence: De Gruchy v The Queen [2002] HCA 33; 211 CLR 85 at 92-93 [28]. It is said by the Crown that the lengthy relationship between these two persons, and its strengthened focus in the period leading up to the murder, bears upon a suggested motive of Monis and the Accused to kill the deceased to clear the way to obtaining unfettered custody of the two children to the perceived mutual benefit of both the Accused and Monis.
On the issue of motive, it would be artificially narrow to receive into evidence only the recent and most direct evidence of the relationship between Monis and the Accused, and their activities on access visits. There is a larger body of evidence which is relevant on the question of motive. Evidence of the Accused acting in various ways, at the bidding of Monis, is also important on this issue. There is considerable force in the Crown submission that the evidence bears upon the issue of motive in the ways described at [101]-[102] above. The evidence suggests the existence of a complex and unusual relationship between the Accused and Monis, where the Accused had acted in various ways at the behest and direction of Monis.
The Crown's reliance on evidence as being relationship evidence, or context evidence, must be understood in the setting of this trial. These terms are most frequently encountered in the context of sexual assault trials and have a particular use in that respect. I do not understand the Crown's reliance upon relationship evidence as being of the type encountered in those cases.
Rather, the Crown relies upon the lengthy relationship between the Accused and Monis from 2007 to 2014, and features of it, which the Crown says serves to explain aspects of the case, including why it would be that the Accused would wish to do harm to the deceased.
Also relevant is evidence of the relationship on the one hand between the Accused and Monis, and their association and relationship with the deceased and the children who lived with the deceased.
For the purposes of this ruling, I have viewed the videos and read the tendered material including the letters written to families of deceased Australian soldiers.
The material may be described accurately as strong and confronting in its content. Upon the basis that it was the Accused who appears in these videos (and this is not in dispute), it may be said that she makes very strong statements (scripted by Monis), but with the tone and demeanour of the speaker indicative of the depth of feeling of the speaker as well. The summary of these videos in the Crown Case Statement set out at [23] above is accurate.
Likewise, the Crown summary of the letters sent to the families of deceased Australian soldiers at [23] above is accurate. In Monis v The Queen; Droudis v The Queen [2013] HCA 4; 249 CLR 92, Crennan, Kiefel and Bell JJ described this material at 185 [254]-[255]:
"254 The charges against the appellants generally concern the sending of letters or a compact disc by Monis to the fathers, the wives or other relatives of Australian soldiers who had been killed whilst on active service in Afghanistan [Two of the charges arose out of a letter sent to the mother of an Austrade official killed in the bombing of the J W Marriott Hotel in Indonesia in July 2009]. The letters contained statements which were critical of the Australian government's role in maintaining troops in Afghanistan. Copies of some of the letters were sent to politicians. The appellants maintain that the letters constitute communications on political and governmental matters which are the subject of the implied freedom of communication on those matters, a freedom which Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 559; [1997] HCA 25]. ('Lange') holds to be an indispensable incident of the system of representative government created by the Constitution.
255 The appellants' letters have another dimension. Whilst they open with expressions of sympathy for the grieving family member or members to whom they are addressed, if the recipients read on, they are confronted with accusations that the dead soldier was a murderer of innocent civilians and children and, in some cases, was to be likened to Hitler."
Their Honours' description illustrates the confronting content of the letters. The conduct of the Accused with respect to these letters was criminal.
I have kept in mind that aspects of the conduct of the Accused, in particular the 2008 videos on the Sheikh Haron website, portraying her in a damaging light. The Accused is depicted on these videos expressing extreme views and making statements supportive of terrorist acts.
It may fairly be said that the conduct of the Accused, in these various ways, revealed a willingness to act, at the behest of and in conjunction with Monis, in socially and morally reprehensible ways.
It is the case that a number of the acts of the Accused occurred in 2008 and 2009, a number of years before April 2013. However, I keep in mind that the Accused was converted to Islam by Monis. The evidence indicates that not only did she take up the religion of Islam, but also what could be regarded as extremist views and conduct which she shared with Monis and declared from time to time. These included praise for the Bali bombers, condemnation of deceased Australian soldiers for their involvement in the wars in Afghanistan and Iraq, the issue of a fatwa against then President-elect Barack Obama based upon his alleged apostasy. The videos reveal that the Accused was not just reading Monis' script, but also acting and speaking whilst being filmed in a forceful and (at times) aggressive manner.
In addition, the Accused participated in the sending of letters to families of deceased Australian servicemen expressed in strong terms, and she appeared in public places in Martin Place and in the vicinity of the Downing Centre and appeared in the videos dressed in a niqab.
On the tendency issue, I have kept in mind the authorities to which the defence has referred the Court which speak of difficulties in particular cases where the tendency alleged is a general one, and where the events said to give rise to the tendency are not similar to the act said to give rise to the offence (in this case, murder).
The present case is an unusual one. The Crown says that the Accused has demonstrated, over an extended period of time, a willingness to not just alter her lifestyle at the behest of Monis, but a willingness to follow his direction in expressing extreme views and acting in a confronting manner in a number of ways which (from what is said by the Accused), are said to relate to the religion which she has adopted at the behest of Monis.
In considering the issue of admissibility for tendency purposes, it is necessary to look at the particular circumstances of the offence for which the Accused is on trial. The killing involved the repeated stabbing of the deceased (some 18 times) who was then doused with petrol and set alight. A combination of those aspects, together with the dress of the assailant (according to an eye witness), provides some support for the existence of religious features associated with the killing. God's use of fire was adverted to by Monis with respect to the Victorian bushfires. The Crown also alleges that Monis took out insurance (including flood insurance) on his third-floor apartment in Werrington. The Crown says that the use of fire was envisaged by Monis in the crime to be carried out on 21 April 2013.
It is correct that there are differences between past conduct of the Accused relied upon by the Crown and the conduct involved in the killing. However, the suggested tendency relied upon by the Crown is a preparedness to do Monis' bidding in a number of different ways, including extremist activities and reprehensible conduct.
The killing is said to have been committed by a woman. It involved a fierce and sustained knife attack. It may be suggested that the assailant manifested emotion in carrying out this attack. It may be said that the use of fire was gratuitous. On one view, it exposed the assailant to an unnecessary risk, thereby supporting a contention that it played a symbolic role in the attack.
There is some force in the defence submission that there is limited evidence of a belief on Monis' part that fire had a religious component. The evidence for this arises from Monis' correspondence in 2009 with politicians that the Victorian bushfires were "God's punishment because the Australian government did not oppose the execution of the Bali bombers" (see [25] above).
The Crown's argument is helped by evidence that Monis insured the Werrington apartment in 2013, including insurance for flood damage for a third-storey apartment which was not proximate to any body of water. This provides support for the Crown submission that Monis expected damage to the property, including water damage which may flow from the need to extinguish a fire. Upon the common understanding between the parties that Monis was not the assailant, it may be contended that Monis communicated these necessary features of the attack to the assailant.
I have kept in mind the prejudicial effect of the conduct of the Accused relied upon by the Crown. As stated earlier, the fact that this is a trial by Judge alone does not mean that the Court puts to one side an assessment of prejudice, which would be more concrete if the trial was before a jury. However, I have also kept in mind that the Court is required to give reasons not just for the present ruling, but for the verdict ultimately reached after all the evidence has been adduced at the trial.
I will keep in mind the purpose for which this evidence is being admitted, and thus seek not to give it undue weight or prominence when assessed in conjunction with other evidence which is to be given at the trial.
In making this assessment, I have kept in mind the question whether there is a real possibility of an alternate explanation consistent with innocence (see [72] above). This aspect is to be considered for s.97(1)(b) purposes and is not, of course, consideration of the ultimate issue in the trial itself. Having considered this aspect, I am satisfied that significant probative value is demonstrated for the purposes of s.97(1)(b) of the Act. No doubt, the arguments advanced for the Accused will be made again at the completion of the trial by reference to all the evidence.
For the purpose of s.101(2), I have considered the prejudicial effect the evidence may have on the Accused. As I have said, the evidence is, in a number of respects, confronting in its content and damaging to the Accused. This is a Judge-alone trial. I keep in mind the features of such a trial referred to in this judgment. The Court will give directions as to the use of the evidence and will seek to comply with them. The Court will be alive to the risks of procedural prejudice raised for the Accused, and will seek to guard against them.
In my view, the probative value of the evidence is significant, and of such weight that it outweighs substantially any prejudicial effect it may have on the Accused. The requirement in s.101(2) for admission of the evidence for tendency purposes is made out in this case.
I will admit the evidence in the trial for tendency purposes as well.
The s.135(c) Objection
I have applied the principles in [57]-[60] above. The tendered evidence to which objection is taken is almost entirely in the form of video, audio or documentary evidence. The challenged evidence forms part of a large circumstantial case comprising video and audio evidence, documentary evidence and the evidence of a number of witnesses. The time required for the tender of the challenged evidence will not be excessive in the context of this trial.
The probative value of the tendered evidence is significant. I am not satisfied that the probative value of the evidence is substantially outweighed by the danger that the evidence might cause or result in undue waste of time.
I decline to exclude the tendered evidence under s.135(c) Evidence Act 1995.