HIS HONOUR: There is before me an application by the Crown to adduce tendency evidence. In the alternative, the Crown asks me to admit either the whole or part of the alleged tendency evidence as context evidence.
The tendency notice bears the date 11 October 2016. It was addressed to the accused's then lawyer, Mr Sam Abbas. The tendency sought to be proved is the accused's tendency to act in particular ways. The Crown has specified six ways in which it says the evidence proves the accused had a tendency to act. They are:
1. to assault the complainant,
2. to threaten the complainant,
3. to intimidate the complainant,
4. to threaten members of the complainant's family,
5. to intimidate members of the complainant's family, and
6. to prevent the complainant from contacting members of the complainant's family.
The evidence upon which the Crown relies are certain parts of a statement of the complainant, Jasmine Bohsali, who I now understand to be known as Jasmine Kelly, and certain statements made by the complainant's mother, Ms Suzanne Kelly, and certain text messages that passed between Ms Suzanne Kelly and the accused.
The first part of the evidence of the complainant relied upon is [4] and [6] of the first statement of the complainant made on 3 January 2015. I omit from what is printed in [4] of that statement evidence, which the Crown does not press, which relates to an allegation that the accused used illegal drugs and the effect of those drugs upon him. The Crown has told me, for example, that it does not wish to lead the last sentence of [3] of the complainant's statement which says this:
"Mohammed was on medication for schizophrenia and he managed it well."
The Crown tells me that it does not seek to adduce any evidence of any psychiatric illness suffered by the accused nor his response to medication or his use of illegal substances.
The remaining parts of [4] and [6] of the first statement are these:
"Our relationship began to break down when we moved to Padstow about two years ago. Mohammed would just snap from being pleasant to being paranoid and aggressive in an instant. He would become paranoid that I was 'out to get him'. Mohammed would play with my emotions and abuse me mentally. Mohammed would lash out at me, kicking or slapping me in places which would be covered by my clothing."
6. Shortly after 11am [on 20 December 2014] Mohammed also arrived at his mother's house. Mohammed was still going on about the business card. He then said to me, 'If you do not tell me the truth I will smash your head in'. Mohammed was glaring at me when he said this and I knew it would escalate as it had in the past. I was scared what Mohammed may do."
The evidence which the Crown seeks to adduce from the complainant's second statement of 3 January 2015 is [6], [7], [12] and [14]. Although the tendency notice references [16] as well, the Crown accepts that [16] is part of what actually happened (the res gestae) and not evidence of any tendency. The paragraphs in question are these:
"6. When Mohammed takes drugs he starts off really nice and then he will become very paranoid and that scares me. He has been violent with me in the past. He would interrogate me and accuse me of putting cameras in the house. He would get violent if I didn't answer him [;] he would then slap me or kick and hit me in the stomach. I became more and more scared of him but then I would think maybe he will get better. When he makes threats he scares me [;] I know he knows where my mother lives [,] my brother [,] my friends. He knows where they are and how to get to [them].
7. In paragraph eight I said that I wanted to call police but Mohammed took my phone. Mohammed had taken my phone off me that morning. When he is paranoid with me he will take my phone off me [,] pull it apart and damage it. The phone I currently have is a cheap Nokia [;] it's black. It's like one of the old phones. Mohammed won't allow me to have a smart phone because it has access to the internet. I don't know what [my] number is as I have changed it that many times as Mohammed keeps taking or damaging my phones. I think it's in my name and I'm with Vodafone.
…
[12] Mohammed was driving behind me and making sure that I didn't drive anywhere else as he does this regularly. He times me or follows me regularly.
…
[14] I did not feel I could get away from Mohammed, the only places I am allowed to go are to his parents or sisters. I don't have any friends or relatives in Sydney. Mohammed tells me where I can go and what I can do. I have to call him consistently or he is with me always. I have to ask permission to go out of the house. I'm not allowed to go anywhere and where would I go. He would threaten my family that if I talked to anyone then he would hurt my family."
The first sentence of [6] of the second statement ought not be admitted because it clearly refers to illicit drug taking. The word "drugs" cannot refer to medication because medication would not have the effect of increasing any paranoia suffered by the accused.
In [12] in the second or final sentence the words "times me or" ought not be admitted because there is no relevant reference in any of the relevant facts to the accused's timing activities given by the complainant.
For the purpose of this ruling I have carefully read the recent decisions of the High Court of Australia in IMM v The Queen [2016] HCA 14 and Hughes v The Queen [2017] HCA 20.
The evidence from the complainant of earlier assaults upon her is not corroborated by any other evidence. It is not corroborated, for example, by a complaint to a relative, friend or neighbour, by attendance upon any medical practitioner or at any hospital or by any photographic evidence or the like. There is merely the say so of the complainant. In IMM v The Queen, French CJ, Kiefel, Bell and Keane JJ said commencing at [61]:
"61. It may be accepted for present purposes that the evidence was relevant as it was capable of showing that the appellant had a sexual interest in the complainant as the trial judge ruled. This is not put in issue by the appellant. But s 97(1)(b) requires more. It requires that the evidence have significant probative value.
62. In a case of this kind, the probative value of the evidence lies in its capacity to support the credibility of the complainant's account. In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met. That is not to say that a complainant's unsupported evidence can never meet that test. It is possible that there may be some special features of a complainant's account of an uncharged incident which give it significant probative value. But without more, it is difficult to see how the complainant's evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value.
63. Evidence from a complainant adduced to show an accused's sexual interest can generally have limited, if any, capacity to rationally affect the probability that the complainant's account of the charged offences is true. It is difficult to see that one might reason rationally to conclude that X's account of charged acts of sexual misconduct is truthful because X gives an account that on another occasion the accused exhibited sexual interest in him or her."
In the current case there is no suggestion of any sexual assault or indecent assault. This has nothing to do with an allegation of sexual misconduct. However, what is alleged is acts of violence perpetrated on the complainant and the complainant seeks to adduce evidence of earlier acts of violence towards her to corroborate her allegation of violence towards her on this occasion. For the reasons given by the plurality which I have just quoted, such evidence lacks significant probative value. Therefore I reject the tender of any evidence from the complainant that he had antecedent to 20 December 2014 either assaulted her or threatened her or intimidated her because there is no evidence to support any allegation of that nature by the complainant antecedent to 20 December 2014, as evidence of any tendency..
However, parts of the evidence of the complainant which I have read do indicate that the accused had interfered with her ability to make contact with her relatives, in particular with her mother, Suzanne Kelly and her partner, Mr Chris Christofi and other close members of her family. There is some evidence to support that evidence from the complainant in text messages sent by the accused to the complainant's mother.
On 2 April 2014 at 8.38pm the accused sent this text message to Suzanne Kelly:
"Don't message or ring us ever again
We both have had enough of ur abuse
Ur not welcome to come near our life anymore
I hope you burn in hell"
Leaving aside the unholy expectation expressed in the last line it appears to me that the first three lines of that communication support the tendency alleged by the Crown that the accused had a tendency to prevent the complainant from contacting members of her family, especially when it is read with other text messages of the same kind.
The next text message commenced shortly after 9pm on the same evening. The relevant part of the text message commencing shortly after 9pm is this:
"Jaz doesn't want you in our life anymore either
I hope you burn in hell
I'm cutting off every single person on your side
I don't want anyone in our life that even knows you
They're all cut out from ur filthy remarks
I will never even pass on a message
Even if you're dying which I really hope you are
I will not let jaz know Nor will I read the message"
That clearly is a message sent by the accused showing a tendency of his to prevent the complainant having social intercourse with her family.
The next relevant piece of email is one of 31 March 2014 at about 9.58am. Leaving out the insults that precede and succeed what I am about to quote, the email is this:
"enuf is enuf now im neva giving Jaz permision to C talk msg u again you pig she can pick ryt nw i hope you die a painful death ps NOW I'm gna cut nany 1 that's got anything to do with you off you want war you've got it"
I believe it to be in the interests of justice and clarity that the Crown agree that the words "you pig she can pick ryt nw I hope you die a painful death" be excised from that quotation as I do not know what exactly it means but it appears to be merely an insult.
The remaining communication does not on the material currently before me have a date. It is set out on page 52 of exhibit VD1 and is repeated on p 66 of exhibit VD1. From p 66 I know that it was dated. It was timed at 3.07pm. Again neither p 66 or p 52 gives me a date for this communication. The communication is this:
"N after i do you will never ever b able to come near us again
Got it not you not your friends not one at or ever again
Make that clear in ur head
Because now you crossed the line in blocking use all off"
The Crown should be able with its resources to ascertain the date on which that email was sent. Those emails sent by the accused corroborate what the complainant says about the accused's blocking her access to family members via at least electronic means, including telephonic means and I allow those text messages and those parts of the complainant's evidence on this subject as evidence of the accused's having a tendency to prevent the complainant from contacting members of her family.
The rest of the text messages which I have had the misfortune of having to read through do not establish any tendency to threaten members of the complainant's family or to intimidate members of the complainant's family. All they do is hurl abuse at the complainant's family. Even if they might be construed as threatening or intimidating their probative value, even if the probative value be significant is certainly outweighed by the prejudicial effect of having these abusive emails put into evidence.
The remaining evidence relied upon by the Crown as tendency evidence are paragraphs 4 and 5 of the statement of Suzanne Kelly. They are these:
"4. It wasn't until March 17 2013, where I met her new boyfriend as they came to my house for my birthday. After this date I haven't seen Mohammed since. It wasn't until November 2013 when I saw my daughter again. From about April 2013, Mohammed started to be verbally abusive towards myself and my partner Chris. Mohammed was continuously saying that I'm a slut, I'm a dog and similar derogatory words. He was also abusive to me in the way of calling my daughter a slut and that he is going to give my daughter to his friends to enjoy. This upset me immensely.
5. At 4.57pm on 31 March 2014 I received a message from 0450 504 887 who I know belongs to Mohammed as I have been texting my daughter through the same phone number. My daughter doesn't have access to a phone and told me she uses Mohamed's phone every now and then to contact me. I have saved his number under "Frank". The message stated, 'Sweet. Ur daughter the little slut is being treated accordingly as I said Im gunna break your heart enjoy your daughter.' As a result of this message I immediately got scared for my daughter's safety. I hardly see my daughter and I always get worried about whether she is safe because I don't hear from her."
The first three sentences of [4] are questions of fact. If they are relevant they can be adduced by the Crown. The fact that the accused commenced to be abusive towards Ms Suzanne Kelly and her partner after April 2013 does not appear to be a relevant fact, nor is it directly relevant to any issue in this trial. It may be that matters raised by the accused might make it relevant but that could only occur in cross-examination. The fact that Ms Kelly was upset is, in my view, irrelevant to the issues between the parties.
The text message quoted in [5] appears to me to be just another insult. The reaction of Ms Suzanne Kelly to the text message is irrelevant. The last sentence of [5] is a fact of which the witness could give direct evidence and she could compare her contact with her daughter in one period with how she had contact with her daughter in a prior period or in a subsequent period.
The text message referred to in [4] is one pressed vigorously by the Crown. The text message is this:
"Now Im gna treat ur daughter like a little slut."
"Im gna share her around like a little pro."
I do not know when that was sent, either as to the timing or the date. There is no suggestion that the activity threatened towards the complainant ever occurred. There is no suggestion that anything like the threat communicated by the accused to the complainant's mother ever occurred and there is no evidence that what was threatened to the complainant's mother was ever threatened to the complainant. It was not a threat directly to the complainant's mother nor is there evidence it was ever communicated to the complainant herself. In my view, when I read all the emails together, it is merely another base insult. In other words, an idle threat, but it was not a threat made to the mother or directly to the daughter. In my view, this should not be admitted as evidence of any tendency, either a tendency to threaten the complainant or intimidate the complainant or to intimidate members of the complainant's family. As I said, read in context, it is merely an insult and is not, therefore, relevant. I reject the tender of that email as any evidence of any tendency.
[2]
Context evidence
I turn, however, to the evidence about the prior physical violence offered to the complainant, according to the complainant's evidence. It has to be remembered that, on the evidence before me, the relationship between Jasmine and the accused persisted for three years. The couple have a daughter, Nora Bohsali, who was born, as best I can work out, in July 2014 and would have been five months old at the time of the crimes alleged by the Crown. According to the evidence of the complainant, this was a de facto relationship, that is, a relationship of husband and wife not sanctioned by marriage, which started happily but then commenced to break down about two years prior to the crimes alleged.
If a jury were to hear that this was a relationship which endured for three years and to whom a child was born merely five months before the relevant events and then to hear suddenly that the accused committed the crimes against the complainant alleged by the Crown, the jury would consider this to be fanciful evidence happening, as it does, out of the blue. For such reasons, the law permits such evidence to be adduced as context evidence to put the evidence before the jury in a way that explains how these events occurred and why they occurred, with a history of preceding domestic violence.
The High Court of Australia has considered evidence of this nature in Roach v The Queen [2011] HCA 12, an appeal from the Supreme Court of Queensland. Their Honours were concerned with the legislation of Queensland. The relevant section was s 132B(2) of the Evidence Act 1977. That provision is this:
"Relevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed is admissible in evidence in the proceedings."
According to the plurality, the section was designed to deal with similar fact evidence and appears to have been enacted in response to the decision of the High Court of Australia in Hoch v The Queen [1988] HCA 50. Whilst the decision largely concerns the question of whether the rule in Pfennig's case is imported into s 130 of the Queensland Evidence Act, it is clear that their Honour's would have allowed the evidence as context or relationship evidence. For example, at [19] the plurality said this:
"The prosecution disavowed any reliance upon the evidence of the previous assaults as evidence of the appellant's propensity to injure the complainant. The evidence of other assaults upon the complainant by the appellant in the course of their relationship was ruled admissible by the trial judge on the basis that, without it, the jury would be faced with a seemingly inexplicable or fanciful incident. The evidence of the incident charged would otherwise appear to be given in a vacuum, his Honour held."
At [21] their Honours pointed out that in the Court of Appeal of Queensland it was not disputed by the appellant that the evidence in question qualified as part of the history of the relationship between the complainant and the appellant. As in the present case, the evidence was of earlier physical assaults, not of sexual assaults. Commencing at [40] the plurality said this:
"In submissions for the appellant it was put that in cases involving domestic violence, "relationship" evidence can only, in truth, be admissible as evidence of propensity. The Court of Appeal appears to have been of a similar view. Holmes JA appears to have doubted that the evidence could have probative value other than as to propensity. Such a view may confuse evidence that may show propensity with evidence used in proof of the offence charged.
[41] In HML v The Queen, Gleeson CJ observed that it is necessary to consider Pfennig in its context. It was a case about the fact of propensity as circumstantial evidence in proof of the offence charged. It was not a case involving evidence that happened to show propensity. In such a case, if the evidence has other, sufficient probative value, it may be necessary to give directions to the jury as to its specific use. If evidence is admissible on one issue, the fact that it may be logically, but not legally, relevant to another issue does not render it irrelevant and therefore inadmissible on the first issue."
At [44] the plurality said this:
"Moreover, a view that evidence of the history of a relationship, including the conduct of one party to it towards the other, is not relevant other than as to the other person's propensity does not accord with what was said by Menzies J (with whom McTiernan and Walsh JJ agreed) in Wilson v The Queen (1970) 123 CLR 334 at 344 to which, it will be recalled, reference was made by the Attorney General for Queensland in the debate on the bill containing s 132B."
Their Honours then quoted extensively from what was said by Menzies J, which clearly points out that evidence of the nature I am now considering is admissible as evidence to prove the nature of the relationship or the context in which the crimes alleged are said to have occurred.
In the circumstances, I permit the Crown to adduce evidence of prior acts of violence alleged to have been committed by the accused upon the complainant as evidence of context or, as is sometimes called, evidence of relationship but, of course, I must give the jury the appropriate directions, both at the time of the admission of the evidence and in the summing-up, that they are not to use this evidence, if they accept it, as evidence of any tendency or propensity on the part of the accused to commit crimes of this nature.
Before I leave the question of tendency evidence and context evidence, I must point out that Mr Roff of counsel, when he was appearing for the accused, pointed out that there were certain deficiencies in the evidence and certain aspects of the evidence which cast significant doubt upon the reliability of some of the evidence of the complainant and doubts on the reliability of the alleged tendency of the accused to restrict the contact between the complainant and her family. He was quite right to do so. However, that is a question for the jury. The questions of the reliability of the evidence and the credibility of the evidence are, under the law of this State, as upheld by the High Court of Australia, questions purely for the jury and not for the trial judge. I point out that for the benefit of Mr Nour so that he realises that it is still open to challenge the evidence adduced by the Crown and to cross-examine, for example, the complainant about her assertions that he did not permit her to contact her family members.
[3]
First 0-0-0 call
The next preliminary issue raised was the admissibility of certain parts of 0-0-0 calls. The transcript of the first 0-0-0 call is exhibit VD7. I have marked with read highlighter those excisions to which the Crown agrees. They are excisions to the answer to question 13 and to the whole of question 31 and its answer.
The other bracketed matter is the matter that Mr Roff, when he was appearing for the accused, sought to exclude. The first matter he seeks to exclude is the last sentence of the answer to question 13. Leaving out the agreed excision, the answer is this:
"Well, we've broken up so he's told me to go and find a house. We've got a five month old baby. One minute he's all right and the next minute he's lost it."
That accused objects to the admission of that last sentence. The statement recorded is consistent with the evidence of the sort to be adduced by the complainant that the accused "would just snap from being pleasant to being paranoid and aggressive in an instant". In my view the evidence must be admitted because it rebuts any suggestion of recent invention. I allow that evidence to stand.
Objection is taken to the whole of question 14 and its answer. They are these:
"Q 14. And what's he doing now?
A. Now he said if I don't come back and take my baby, um, he's gunna smash me in front of everyone, he's gunna kill my whole family."
That statement is not made by the complainant in any statement she has made to the police. However, it is contemporaneously made to the 0-0-0 operator on 3 January 2015 at a time which the material evidence before me does not disclose. Again it is consistent with allegations made by the complainant of threats made against her. On this occasion it goes further and contains a threat made against her family, but whether she maintains that in her oral evidence I do not know. It is a question which can be the subject of cross-examination. However, since it is contemporaneous and not made in circumstances in which the complainant might believe what she was saying was being recorded I am prepared to allow that evidence.
Objection is also taken to questions and answers 17, 18, 22, 23 and 24, although there is no answer to question 23. The relevant evidence is this:
"Q 17. No, okay.
A. Just me.
Q 18. Okay.
A. Last week, last week I was unconscious."
The preceding question and answer were these:
"Q 16. Has he hurt the child?
A. No, he'd...no never."
There the complainant was volunteering that she had previously been hurt and that in the last week she had been rendered unconscious. That is consistent with the allegations made by the complainant to police subsequently and this indeed could amount to a contemporaneous complaint before the complaint she made to the police. In that circumstance and bearing in mind this was communication was made at a time when the complainant probably did not expect what she said was being recorded or of its legal significance, I believe I should allow it.
The operator went onto ask the complainant the name of her husband. After pointing out that his forename was Michael and his surname was Nour the complainant volunteered that the accused had two names and the two names and their spelling were given in questions and answers 22, 23 and 24. I amended the indictment at the request of the accused to show his name as being Michael Nour. However, all the documentary evidence suggests that the accused may have been using the name Mohammed Bohsali up until this time and it is so recorded and so referred to in a large number of parts of the evidence. The case could not possibly be presented without the jury knowing that the accused also was known as Mohammed Bohsali at times. This does not harm the accused in anyway and it will make the evidence much easier for the jury to follow it. I allow it.
An objection is taken to part of the last answer to question 26. The answer recorded is "No (? his behave ?) I just need to get someone safe". What is objected to is the matter in brackets and question marks which clearly indicates that there was difficulty in transcribing what was said. In the circumstances I ought disallow what might be misinterpreted. So I disallow that part of the fourth answer to question 26 which is objected to by the accused.
Questions 28 and 29 and the answers given to them are objected to. Question 28 asks whether the accused had any weapons or firearms on him and question 29 asked whether there were any AVOs, that is apprehended violence orders between the complainant and the accused. The answer to each of those questions was "No". No harm at all is done to the accused's case by those questions being asked which are standard questions asked by a 0-0-0 operator and the answers given are all in favour of the accused.
[4]
Second 0-0-0 call
In the transcript of the second 0-0-0 call there is an objection to the extended answer to question eight and to question nine and its answer and to the first part of question ten. The matter is this:
"Q 8. And has anything changed since you last spoke to us?
A. No. I just need to get somewhere cause I know my husband is probably trying to find me out there. So I can't go anywhere.
Q 9. Yeah, but you're safe in there?
A. Yeah.
Q 10. So you keep yourself safe in there. The police are on their way, it will just be the next available car in the area, okay?
A. Okay."
That is also the end of that telephone call. What was said in my view is consistent with the behaviour otherwise demonstrated and in my view could not cause the accused any unfair prejudice. It is a transcript of a call made by the complainant prior to her coming into contact with police and is consistent with the behaviour that she had demonstrated antecedent to which is evidence of the fact. I allow those parts of the second triple-0 call to be admitted into evidence.
[5]
Admission to Constable N Dib
The final matter requiring a preliminary view is an alleged admission made by the accused at Liverpool Police Station after his arrest. The statement is made by Constable Nisar Dib, a constable of police who was rostered on night shift at the Liverpool Police Station on 3 January 2015 commencing his shift at 6.30pm. Paragraphs [5] and [6] of the statement are these:
"5. I noticed the accused make a phone call to his mother using the charge room telephone. Bohsali was speaking Arabic over the phone and I had asked Leading Senior Constable Arnold as to why Bohsali was in custody.
6. As I was using the computer, I overheard Bohsali say to his mother in Arabic to 'make arrangements with a lawyer' I can't believe she is doing this, what is going to happen to me, mum call her and speak with her about the incident for me'."
The inverted commas after the word "lawyer" in my view represents a typographical error and what ought to have been typed was a comma. It appears to me that all words from "make arrangements" to the end of the paragraph I have quoted are what is alleged was said by the accused to his mother according to Constable Dib.
To rule on this matter I shall need to make reference to the decisions of the Court of Criminal Appeal in Bryant v Regina [2011] NSWCCA 26 and Regina v TD [2013] NSWCCA 337. However, I agree with what was put to me by Mr Roff that I should defer ruling on that until after I hear the evidence adduced from the complainant. It maybe that it is common ground that there is no dispute that some "incident" occurred but it is not what the complainant says. If that be the position then I could hardly see the objection being taken by counsel to the adducing of the evidence because the evidence is completely neutral if it is common ground that some incident had occurred. I therefore defer ruling on the admission of that statement of Constable Dib until after I have heard the evidence of the complainant as Mr Roff asked me to do on Monday.
[6]
Amendments
01 February 2018 - Typographical error.
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Decision last updated: 19 June 2018