R v Schifilliti

R v Schifilliti - [2022] NSWDC 704 - NSWDC 2022 case summary — Zoe

[3]

JUDGMENT

HIS HONOUR: The accused, Joseph Schifilliti, was committed to the District Court for trial in December 2020. He was arraigned with respect to four counts relating to the alleged non‑consensual sexual touching and also sexual intercourse without consent with his then‑wife arising from events which allegedly occurred on 28 March 2020. The matter was originally listed for trial in July 2021. The Court was advised that there was pre‑trial argument which was estimated to occupy some two days in advance of the trial. In due course, the trial itself could not proceed because of public health restrictions brought about the COVID‑19 pandemic. The pre‑trial issues were, however, dealt with by Syme DCJ of this Court.
Application was made for severance of the counts in the indictment, notwithstanding that each of the alleged incidents took place on the one evening in the space of a relatively confined period of time. The allegations brought by the Crown were that on the one occasion, sometime after 9pm on 28 March 2020, there were four separate incidents of sexual touching; two of which devolved to digital penetration of the anus. It is alleged that prior to these incidents, the complainant had specifically indicated a lack or refusal of consent.
The application for separate trials of the sexual touching offences, which involved the breast in the first instance and the genital area in the second, to be tried separately from the allegations of sexual intercourse arising from the claimed digital penetration of the anus, was set out in written submissions on behalf of the accused. Those submissions have been tendered in the current proceedings as voir dire exhibit E. The circumstance of the alleged offending behaviour occurred, within the confines of a marital relationship, are exemplified in those submissions. In support of the application for separate trials, it was submitted: "The defendant's prospect of a fair trial in the so‑called sexual touching charges is likely nullified if he is put on trial for those allegations embodied in the sexual intercourse without consent charges. What may have been the not‑unusual".
I actually read that, presumably it was intended to read the 'not‑usual' but what it reads literally is: "What may have been the not‑unusual full enthusiasm of the complainant to those events, which are alleged to be offences of the sexual touching kind, was, were and would be magnified into egregious outrage if assaulted as alleged by the claim of anal penetration at the hands of the defendant. Of course, a person is not usually or ever charged with offences of being more sexually enthusiastic in his or her intimate because this would easily be recognised as intolerable."
Counsel for the accused, Mr Brezniak, also advanced in those written submissions the proposition that, "The prosecution of four counts for events closely related in time and being, in effect, one of event, is, it is submitted, to be deplored."
The written submissions went on to criticise the decision made by the New South Wales Office of the Director of Public Prosecutions to "impose a multiplicity of charges when the criminality of the allegations is patently sufficiently exhibited by one and, on occasion, two charges." It suffices to note that her Honour Syme DCJ, correctly in my view, refused the application for separate trials.
The second aspect of the pre‑trial orders related to an objection to evidence which, in broad terms, went to the nature of the relationship between the accused the accused and the complainant in the marriage. In the Crown's oral and written submissions before Syme DCJ, which were prepared and presented by solicitor-advocate Mr Ellison, the Crown submitted that evidence of the nature of the relationship during the course of the marriage was relevant and admissible in order to understand the response by the complainant to the alleged conduct of the accused.
The evidence of the complainant, in short, was that after the initial physically touching of her and the first episode of digital penetration, she did not leave the matrimonial bed, nor the home, but she put on an eye mask or sleep mask and turned on her side.
The second episode of physical touching and a further episode of digital penetration of the complainant's anus then occurred in what a jury might perceive was a degree of acquiescence by the complainant.
The Crown allegations will require proof beyond reasonable doubt that each of the acts allegedly actually occurred. The position for the accused is that they did not physically occur at all. However, if a jury is satisfied that the act or acts did occur, they would also need to be satisfied that the complainant did not consent and that the accused knew that she was not consenting. It was submitted by the Crown in the pre‑trial argument before Syme DCJ that, "A question that would naturally occur arise in the minds of the jury would be to ask whether or not the manner in which the complainant reacted to the alleged conduct is consistent with what you would expect in the circumstances."
In the Crown's submission, a jury may consider the complainant's reaction or lack of reaction, in the context of a matrimonial relationship, to be improbable unless the true nature of the relationship is put before them. The evidence relating to the nature of the relationship, put shortly and according to the complainant, was that there had been past incidents of abuse and violence in the course of an acrimonious relationship. The complainant had contacted and had communications with the service described as 1800RESPECT both before and after the alleged assaults and in a subsequent digital video recording with police of a number instances of what she described as "abuse and violence". These included an assertion that the accused would often rant and blame the complainant for not servicing him when the complainant did not want to sleep with her husband.
The Crown, in the written submissions, before Syme DCJ, set out various of the aspects anticipated as endeavouring to be led or adduced through the complainant. Firstly, she said the accused often rants and blames the complainant for not servicing him when the complainant did not want to sleep with him. The accused persists and the complainant said, "Basically, just lie there and he does whatever he wants no matter how many times I ask him to stop what he's doing, if he's hurting me or whatever."
I do not propose to give the citations to the portions of the evidence; they are clearly set out on p 6 of the Crown's submissions to Syme DCJ, which are exhibit D on the voir dire before me.
Next, that the accused put the complainant down daily, "calling me the C‑word, telling me how to stupid I am". Next point; the accused screams at the complainant, "whenever I try to speak up". The next point was that the accused headbutted the complainant when they were engaged on 17 August 2016, according to hospital records. This occurred during the course of an argument "because I said something he didn't like". The complainant was taken to the hospital by the accused and told the hospital staff that she had in fact fallen and hit her nose on a wooden door. Next; the accused put his hand around the complainant's neck in bed within a month prior to the allegations. Next; the accused threatened the complainant that if she ever left him, he would kill the complainant, her mother, her sister and her dog.
It was submitted on behalf of the Crown that such evidence was relevant as revealing a relationship, using the terminology used by the High Court in Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334, of domination, hostility and control. On behalf of the accused, in submissions before Syme DCJ, the totality of the alleged prior misconduct of the accused was objected to. It was submitted that such evidence was, in fact, impermissible tendency evidence and the categorisation of it as relationship or context evidence was, in effect, an attempt at justification for the receipt of highly prejudicial and impermissible evidence.
It is sufficient for present purposes to note that in her judgment of 20 July 2021, Syme DCJ ruled that evidence of the claim of the true nature of the relationship should be admitted. Her Honour did so upon the basis that had been advanced by the Crown, namely that in the absence of evidence revealing that the relationship was characterised by domination, hostility, and control by the accused, the reaction of the complainant may seem less believable and less plausible to a jury.
The next area of pre‑trial ruling which was sought from her Honour Syme DCJ related to a recording made by the complainant using her mobile phone on the morning after the alleged assaults. Challenge was brought to the admissibility of that recording on the basis that it was a contravention of the prohibition in the Surveillance Devices Act 2007 (NSW), and did not conform to the relevant exceptions which would permit its admission into evidence. Syme DCJ analysed the legislative position and gave consideration to judicial discretions relating to the question of unfair prejudice. Her Honour ultimately ruled that the recording was admissible.
The next category of evidence objected to was complaint evidence. Again, in short, evidence was available of complaint made to the complainant's mother, to counsellors in the 1800RESPECT communications, and subsequently, later the same day, 29 March 2020, in the DVEC recording by the complainant with police. Counsel for the accused, in relation to the 1800RESPECT communications, had submitted:
"If complaint to her mother is the proof of complaint why then the need for an additional complaint, i.e., the 1800 call made on or after 29 March 2020".
Her Honour Syme DCJ dealt with this submission in short. She said: "To suggest as counsel does that two pieces of evidence of complaint cannot be admissible is simply wrong. Both complaints are made in close proximity to the events occurring, and to parties whom one would expect complaints would be made to."
Her Honour accordingly ruled that there was no proper reason not to allow the identified pieces of evidence in as complaint evidence. Having dealt with the generality of evidence of relationship, her Honour indicated that there were portions of the conversations between the complainant and the 1800RESPECT counsellors which did not appear to be relevant to either the nature of the relationship or as evidence of complaint. Her Honour discussed with the legal representatives the necessity for agreement to be reached regarding editing of the relevant material. Her Honour indicated that should agreement not be able to reached, the accused should file and serve a notice of motion indicating what was objected to. Her Honour directed that such application be filed by 22 November 2021 and then gave the Crown 28 days after that date or after service to respond. Her Honour also indicated that she would deal with any outstanding issues before the end of the year, and gave the parties leave for them to approach her to seek additional pre‑trial rulings if necessary. The trial was subsequently relisted with a fresh trial date of 22 March 2022.
No notice of motion or other communication regarding objections or agreement to evidence was received by the Court during the balance of 2021. On 13 March 2022, the solicitor for the accused wrote to the Crown raising detailed objections to identified portions of evidence. A readiness call over was fixed for 17 March 2022, prior to the commencement date of the trial, and the defence indicated at that call-over an intention to raise the matters set out in the correspondence that they had forwarded. The letter from the defence solicitor said: "First, most important and primarily, we are of the view that the so‑called relationship or context evidence is and remains inadmissible in the criminal trial against our client at his forthcoming trial."
After identifying specific objections to identified parts of the proposed evidence, the letter from the defence solicitor contended that the legal argument from each of the prosecution and defence at the hearing before Syme DCJ had been "at a level of generality as to make the decision of her Honour of limited application to the precise circumstances to be decided by the jury."
The letter from the solicitor continued in submitting that the Crown's submissions before Syme DCJ were wrong and misleading, specifically with respect to references in the written submissions that referred to HML v The Queen [2008] HCA 16; 235 CLR 334.
At the call-over before Hunt DCJ on 17 March 2022, his Honour was advised that the defence wished to re‑agitate the pre‑trial rulings of Syme DCJ with respect to the admissibility of the relationship evidence. It was estimated that such pre‑trial argument would take a day. Hunt DCJ made directions regarding the filing of written submissions with respect to the application to be filed by both the defence later that very day and by the Crown the following day, which was a Friday. In due course, submissions were served. They were followed up by additional submissions over the weekend and on 22 March 2022 the matter came before me for trial. Despite no formal notice of motion having been filed, I treated the application to re‑agitate the pre‑trial rulings by Syme DCJ as being properly before the Court.
Little reference was made in submissions before me to the legislative prerequisites regarding pre‑trial orders. They are, of course, binding on a trial judge "unless in the opinion of the trial judge it would not be in the interest of justice for the order to be binding": s 130A(1) Criminal Procedure Act 1986.
Section 139 also relates to pre‑trial hearings and requires the leave of the Court to raise any matter that was not raised at the original pre‑trial hearing but is sought to be raised subsequently: see s 139(6). Such a grant of leave is not to be granted unless the Court is of the opinion that it would be "contrary to the interests of justice" to refuse leave to raise the matter concerned. The concept of "the interests of justice" is not defined.
The New South Wales Court of Criminal Appeal has given consideration to the phrase "the interests of justice" on a number of occasions including in relation to rulings regarding applications for judge‑alone trials. In R v Belghar [2012] NSWCCA 86, circumstances where an accused person, because of their religious or cultural circumstances was concerned that he may not get a fair trial by a jury, was determined to be a reasonable apprehension, and at least relevant to a consideration in determination of the "interests of justice".
McClellan CJ at CL, reviewed a variety of other circumstances which had been considered as relevant, in the particular circumstances of the cases to which his Honour turned, to a consideration of the interests of justice. A consideration of the efficiencies available from a judge‑alone trial and a consideration of the effect of complex and long trials and the adverse effects on jurors, were amongst factors that his Honour referred to. Ultimately, the specific decision at first instance by his Honour Solomon DCJ was overturned. In Landsman v R [2014] NSWCCA 328, the Court considered whether it was in the interests of justice to permit the Crown to adduce fresh evidence on appeal to the District Court on the question of the guilt of the offender. In considering that question, the Court noted that the phrase "interests of justice" were words of the widest import. The Court, per the President, Beazley P, as the Governor then was, with Hidden and Fullerton JJ agreeing, cited Kirby J in Herron v The Attorney General for New South Wales (1987) 8 NSWLR 601 at 613, where Kirby J said: "Those words 'in the interests of justice' are plainly words of the widest possible reference. Indeed, there could scarcely be a wider judicial remit. They enliven a discretionary judgment."
In Re Mickelberg (1992) 59 A Crim R 288 at 302 - 303, the Chief Justice, His Honour Malcolm CJ, the Chief Justice of the Western Australian Supreme Court, said: "The interests of justice in a particular criminal case are to ensure that a person that is accused of a crime is convicted if guilty and acquitted if innocent, after he has had a fair trial. The interests of justice also extend to the public interest in the due administration of justice."
The context in which Malcolm CJ made that observation related to an application by two of the Mickelberg brothers, some ten years after their convictions, seeking the leave of the Court to up‑lift various exhibits from their trial for the purpose of fresh scientific examination. The Court in that instance granted the application.
In the present matter, counsel for the accused submitted that the orders made by Syme DCJ were wrong, that her Honour was clearly in error having been unassisted by the parties, and that the admission of the evidence would constitute "most certainly a miscarriage of justice."
The question as to whether or not the interests of justice require a determination that her Honour's orders should not bind me as the trial judge, requires a revisiting of the arguments regarding admissibility. Absent such a reconsideration, the proposition that her Honour, as Mr Brezniak categorised it, made a "quite wrongly decided decision which would most certainly be a miscarriage of justice", necessitates such a review. Oral submissions in addition to written submissions were received on Monday, 21 March 2022, and more expansive oral submissions were then developed at length on Tuesday, 22 March 2022. I then reserved until Wednesday, 23 March 2022 with a view to delivering a judgment after having fully heard the argument; and then empanelling a jury with a view to commencing the evidence on Thursday, 24 March 2022.
In the event, an email was received from defence counsel on the morning of Wednesday, 23 March seeking to further agitate aspects of the argument that had been developed.
Accordingly, following the allocation of a jury empanelling slot for Wednesday, 23 March 2022, at 10am a jury was empanelled and the jury was then sent away to return following the legal argument. Further oral submissions were then developed which occupied effectively the balance of the hearing day. Judgment was then again reserved. The essence of the extensive submissions developed by Mr Brezniak, amongst other cases of course, focused principally on a detailed analysis of the various judgments in HML v The Queen. I will make reference to some parts of those various and in some areas, non‑agreeing judgments of the plurality in the High Court, but I am very conscious of the nature of the jurisdiction in which I sit. I do not propose to go into an academic analysis of a kind which, were I either in another place or in an alternative academic pursuit, might be attractive.
HML was one of three cases dealt with by the High Court following appeals after trial in South Australia in each instance. It is important, of course, to note that HML was specifically dealing with the common law and with application that the test which had been articulated by the High Court in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461. Each case had involved the admission into evidence of previous sexual misconduct by the accused with the complainant in each case or towards the complainant. In each case the complainant was a young child and the accused was an older adult male and uncharged acts had been admitted into the various trials as evidence of relationship. The differing members of the Full Court delivered lengthy judgments in the course of which detailed analysis of the history, relevance, and admissibility of prior conduct was analysed and considered. I not propose to repeat the detail of the helpful and very extensive submissions made by Mr Brezniak of those individual judgments. As I have already intimated, it suffices to observe that there were not insubstantial differences in reasoning between the different judgments in the High Court .
It is appropriate to note that various members of the High Court made specific reference to the circumstances which the High Court had dealt with in Wilson v The Queen. It suffices to note that none of them sought to develop a line of reasoning which would suggest that Wilson had been wrongly decided, and indeed, the respective appellants did not seek to develop such a submission before the High Court. The significance of Wilson, of course, is that the conduct which was relied upon was, in that case because it involved the murder of the victim, of a different nature than the actual actus reus of the offence which was charged.
In HML, and the other two appeals being dealt with by the High Court in that matter, namely SB v Queen and OAE v Queen, the prior conduct in each case, with a qualification to some degree in the specific facts regarding HML, related to sexual conduct of a kind which carried with it, because of its similarity in broad terms with the offence charged, namely being of a sexual nature, carried with it the real danger of the misuse of the evidence as propensity or tendency evidence. The cases all respectively dealt with the admission of that prior conduct for reasons other than tendency and propensity, and in most of the cases, the sufficiency or otherwise of the directions cautioning against the misuse of that evidence, which had been given at trial by the trial judges.
It is clear that HML subsequently gave rise to consideration of so-called relationship evidence, or in some circumstances, context evidence, and for present purposes I do not propose to dive into the debate regarding the fine distinction between these various different categorisations, nor indeed, the utility of some of the labels put on the evidence, or evidence of that type, but it is appropriate to note that the Chief Judge at Common Law, McClellan CJ, in particular, has reviewed the reasoning in HML and the various different decisions in a number of subsequent considerations in the New South Wales Court of Criminal Appeal. I do not propose to go chapter and verse to them, but I have re-read all of those cases including those referred to by Mr Brezniak in terms.
It is clear, and has been followed as the law in this State, pursuant to the Evidence Act, and following the guidance by McClellan CJ at CL in the decision of Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463, that identification of the particular relevance of evidence described generically as relationship evidence ( now, preferably, context evidence) needs to be identified. As is clear in reviewing the High Court in HML, in those cases, and in HML specifically, there were a number of different bases that the Crown sought to justify the admissibility of the evidence, which were set out quite clearly in the decision of Heydon J in HML.
So far as a basis for admissibility being an explanation for a degree of what is described as "acquiescence", Heydon J made reference to a number of cases in which acquiescence, as a legitimate basis for the admissibility of such evidence, had been referred to. At [314] in HML, his Honour made reference to the circumstance that this ground of reception has been employed in other cases. His Honour made reference to R v Etherington (1982) 32 SASR 230 at 235; Josifoski v The Queen (1997) 2 VR 68 at 77; and to observations in the High Court in Gipp v The Queen (1998) 194 CLR 106.
His Honour in relation to that particular aspect acknowledged that, of course, it was one basis upon which some evidence might relevantly be admitted. It is unnecessary for present purposes to make reference to the other bases upon which it was admitted in HML, other than to note that a further ground was in relation to context, or otherwise described as background evidence, and his Honour Heydon J went into considerable analysis of the reasoning behind admission on that basis.
It is, in my view, clear, that as a general statement of principle, evidence of relationship can, in an appropriate case, be admitted for the types of purposes described in HML. There is a veritable litany of cases in which previous sexual misconduct is admitted on a restricted basis. It appeared to me, in giving consideration to the, as I repeat, very helpful submissions that have been put before this Court, to have regard to cases in which the prior conduct was not necessarily of a sexual nature.
Prior to the guidance that is provided by HML, the New South Wales Court of Criminal Appeal had dealt with the admission of material which was said to have been admitted purely as context and relationship evidence, notwithstanding the potential danger of it being misused by a jury as propensity evidence. In R v Atroushi (2001) NSWCCA 406, the appellant had challenged his conviction following a jury trial at Liverpool District Court. He had been convicted at trial in relation to one count of stalking with intention to cause a female to fear personal safety, and an additional count of possessing a rifle in a public place. The jury had found him not guilty of wounding the brother of the female victim who he was convicted of stalking.
The grounds of appeal sought to challenge the admission into evidence of a variety of acts and behaviour of the appellant with the complainant and her family from 1993, up until the date of the alleged offences in 1998. The factual background giving rise to the context and relationship evidence which the trial judge had admitted, indicated that the appellant had been born in a village in Iraq to Kurdish parents in July 1964.
He was described as a member of a large and poor family. Nevertheless, he was educated and obtained a degree in civil engineering in 1986. The appellant was the nephew of Majid Atroushi, who was the father of Shekherd, the complainant in the stalking count, and also, Shiwan, her brother, who had been alleged to be victim in the second count, which had resulted in the verdict of not guilty.
In 1991, Majid Atroushi and his family, including his wife, his daughter, Shekherd, the complainant in the stalking, and his son, Shiwan, migrated to Australia from Iraq. In 1993, Majid sponsored his nephew, the appellant, Saphar Atroushi, to come to Australia. Saphar Atroushi at that time was in a refugee camp in Turkey. The appellant arrived in Australia in January 1993, and lived with the extended Atroushi family for a period of approximately 6 weeks at their unit in Liverpool.
Shortly after moving out of the Atroushi home unit, the appellant approached Majid and asked if he could marry his daughter, Shekherd. Majid told the appellant that he would consent to the marriage if Shekherd agreed. Unfortunately for Saphar Atroushi, there had never been any romantic relationship between him and Shekherd and, in fact, Shekherd did not wish to marry him and she informed her father accordingly.
Shekherd's father, Majid, had travelled to Iraq shortly after the proposal had been put to him. Following his return to Australia some 8 months later, he became aware of Saphar Atroushi continuing to make advances to Shekherd, the daughter, notwithstanding Shekherd having made it clear that she was not interested in him.
In due course, Majid asked Saphar to stop coming to their home, and to cut his ties with the father, because the daughter, Shekherd, did not wish to marry him and did not appreciate his advances.
Evidence was admitted that from that time on the appellant had begun consistently ringing the house. On occasions that Majid would answer, the appellant made threats that he would kill Shekherd if she refused to marry him, and anyone who married her would die. The appellant confronted Majid in the street, making the same threats, and ultimately, an Apprehended Violence Order was obtained to prevent Saphar Atroushi from approaching members of the family, including Shekherd, her brother Shiwan, and the father, Majid. There was apparently a delay in serving the order, due to an inability of police to locate the appellant. It was eventually served in April 1995. The Apprehended Violence Order was for a period of 3 years.
In December 1995 Shekherd married a different man, Mohammed Doski, and they moved into an apartment in Atkinson St, Liverpool. Some evidence was admitted regarding the making of threats by the appellant in December 1994, and then a fight between the appellant and Mr Shiwan Atroushi in January 1995, leading up to the making of the Apprehended Violence Order, which, as I have said earlier, was served in April 1995.
On a number of occasions, and in particular in January 1998, Shekherd observed the appellant in a motor vehicle outside her unit in Atkinson St, Liverpool. On some occasions she saw him leave the vehicle and look around the area before returning to his motor vehicle.
At about 10am on 28 January, Shekherd observed a confrontation between the appellant and her brother outside her home unit whilst the appellant was armed with a knife. Police were called, and both men were arrested. A search of the appellant's motor vehicle revealed a loaded rifle with a telescopic sight and ammunition. Five matching bullets were found by police in the jacket, which the appellant was wearing. The trial judge, O'Reilly QC DCJ, directed the jury that the evidence of the earlier acts and the nature of the relationship was not to be used as tendency or propensity evidence. It was admitted for the limited purpose of enabling the jury to give consideration to the state of mind of the appellant when he attended outside the home unit in January 1998.
Carruthers AJ, with whom Giles JA and Howie J agreed, noted that, generally speaking, relationship evidence would be admissible in order to place evidence of an offence charged into a true and realistic context, and in order to assist the jury to appreciate the full significance of what would otherwise appear to be an isolated act occurring without any apparent reason. His Honour made reference, in this regard, to R v MM [2000] NSWCCA 78, 112 A Crim R 519.
His Honour noted: "In the instant case, it had a more specific function in that it went to an element of the offence; namely, that the appellant had the intention of causing the complainant to fear physical or mental harm in that he knew that his conduct was like to cause fear in the complainant. At the trial, the jury had been succinctly warned that they could not use the evidence as establishing a propensity on behalf of the appellant. Counsel for the appellant argued, on the appeal, that if the relationship evidence was relevant, it should have been rejected either pursuant to the mandatory terms of s 137 of the Evidence Act or by virtue of the discretion vested in the trial judge under s 135. Carruthers AJ, in rejecting the arguments on the appeal, referred to R v AN [2000] NSW CCA 372; 117 A Crim R 176 in which Kirby J reviewed a number of the more recent judgments, at that that time, dealing with relationship evidence. Evidence of a relationship was said to serve two purposes; the first was to explain what happened and why it happened and the second was to furnish the context within which the allegations might be examined. Reference was made to Barwick CJ's judgment in Wilson v The Queen where his Honour said, at 339, "The touchstone is logic. It is not that all evidence of the relationship of the parties is admissible, but only that from which a relevant inference may logically and reasonably be drawn."
McHugh and Hayne JJ had said in Gipp v The Queen at 130‑131, "Without knowing the course of the relationship, the jury may have had great difficulty in accepting that the incidents could have occurred in the way that the complainant described". Their Honours cited R v Etherington, the South Australian case which Heydon J, in due course, made reference to in HML.
Kirby J, in R v AN [2000] NSW CCA 372; 117 A Crim R 176, had adverted to the question of whether it was valid to inquire if the events which the Crown seeks to introduce, were too remote from the events which were the subject of the charge. Kirby J concluded that time was not the limitation upon the reception of relationship evidence; the test was logic and the capacity of the events to explain the conduct charged. Carruthers AJ also made reference to the remarks of McHugh J in Harriman v R [1989] HCA 50; (1989) 167 CLR 590 at 631, where his Honour said: "In Garner, on a charge of assault occasioning actual bodily harm, evidence of 'a long course of cruelty and continued ill‑treatment' by the accused to the complainant was rightly admitted because it showed the 'atmosphere of hostility' which existed and made more probable than not that the assault in question had occurred."
Kirby J had also pointed out, in AN, that "the remoteness of conduct from the offence charged is important to the exercise of discretion" under s 135 and 136 of the Evidence Act 1995 (NSW) and also with respect to the mandatory provisions of s 137. Carruthers AJ noted that the more remote the relationship evidence may be, the less will necessarily be its weight. His Honour pointed out, however, that this was question of logic. Carruthers AJ concluded that the impugned evidence tendered against Saphar Atroushi was relevant and gave meaning to the events which occurred in January 1998 and was also relevant to elements of the stalking offence in that it went to establish that the conduct was likely to cause fear in the complainant. His Honour concluded, at [47]: "The continuing sequence of events between 1993 and 1998 involving the relationship between the appellant and the complainant went directly to the state of mind the appellant at the time of the commission of the stalking offence." The appeal was, accordingly, dismissed.
In KTR v R [2010] NSWCCA 271 McClellan CJ at CL and Simpson and Fullerton JJ comprising the Court on that occasion, the NSW Court of Criminal Appeal dealt with a challenge to conviction based on the admission of evidence of threats and actual acts of violence perpetrated by the appellant against others than the complainants themselves, in addition to acts of violence against the complainants. The appellant had been convicted of 15 counts relating to the various sexual offences allegedly committed against his two stepdaughters between 1979 and 1982. 12 of the counts on the indictment concerned alleged assaults committed upon the appellant's oldest stepdaughter, KG, while the remaining three counts concerned his youngest stepdaughter, SK. KG had been between the ages of 12 and 15 during the time of the offending and SK had been between the ages of nine and 13.
The question of the admissibility of the evidence of violence which had been perpetrated by the appellant on each of the complainants as well as on other members of the family was raised before the jury was empanelled. On behalf of the accused it was submitted that the evidence was not relevant, there being no suggestion that any of the sexual acts were committed in response to threats or actual violence on the part of the appellant. The Crown pressed the evidence in that case on three bases: 1. that it explained the complainants' acquiescence; 2. it explained the complainants' failure, in that particular matter to complain to their mother in a timely manner; and 3. with respect to one specific count, it was relevant to prove a lack of consent with respect to KG.
McClellan CJ at CL, with whom Simpson and Fullerton JJ relevantly agreed, referred to the admission of evidence which had the effect of explaining the actions or lack of action of a complainant. His Honour noted that the area was not without controversy and difficulty. His Honour remarked, at [88]: "When the evidence is tendered for the purpose of establishing the context in which the charged acts occurred, it is necessary to consider whether the evidence bears upon the assessment of a probability of a fact in issue; whether it is relevant only to the credit of a witness or whether, although otherwise admissible, it should be excluded because of the danger of unfair prejudice."
McClellan CJ at CL, after referring to the differing judges and judgments in HML, said, at [91]:"In many cases, in order to reach a conclusion about whether a particular act happened, the context in which that act is said to have occurred will be of assistance to the decision‑maker. Accordingly, if there is a history of sexual misconduct by an accused with a complainant, common sense would suggest that it is more likely that a particular event, even if not precisely recalled by a complainant, will have occurred. Where in a trial for murder, the issue is whether the accused discharged the gun by accident, evidence of a pre‑existing enmity between the parties would, as a matter of common sense, suggest that the shooting was deliberate rather than an accident. This was the situation in Wilson v The Queen.
The Chief Judge at Common Law then continued and concluded that the evidence of the appellant's violent conduct towards the complainants was admissible subject to discretionary issues. However, his Honour came to a different view with respect to acts of violence committed on the mother of the stepdaughters and on an adopted son who was a similar age to KG, the eldest stepdaughter. His Honour was of the view that the evidence of acts of violence towards those persons, on occasions when the complainants were not present, confirmed a tendency for violence on the part of the appellant but was not admissible as evidence of the context in which the alleged offences had occurred.
The evidence of the violence administered by the appellant was regular during the period of the appellant's marriage. He had married the mother of the two female complainants in 1974, at which time the girls were respectively aged seven and four. Another child was two years of age and an adopted son was also seven years of age. The eldest stepdaughter gave evidence of the appellant being consistently violent.
The summary of the facts in the Court of Criminal Appeal does not make it clear how soon after the marriage in 1974 the acts of violence had first commenced. The eldest stepdaughter gave evidence of getting beatings with a rod or cane for slight infractions and having seen the appellant use a leather strap or rod on her siblings. The younger complainant described the appellant as being initially "an okay father" but as time went on, he was described as a violent and lazy man. She was terrified of her stepfather and described him flogging the adopted child, sometimes for no reason, with extreme force with a strap such as to leave welts.
Notwithstanding the view of McClellan CJ at CL that the violence towards others in the absence of the complainants ought not to have been admitted, his Honour was not of the view that the admission of such additional evidence of violence should result in the conviction being quashed. Notwithstanding that such evidence would undoubtedly have adversely coloured the jury's view of the appellant, his Honour did not believe that it caused the trial to miscarry or occasion the loss of a chance of an acquittal.
Accordingly, his Honour's view was that the appeal should be dismissed. Fullerton J agreed. Simpson J, while agreeing with the orders proposed by the presiding judge and with most of his reasons, departed from his Honour's views with respect to the evidence of violence given at trial by the complainants' mother and the adopted brother. Simpson J was not attracted to the proposition that the evidence of violence towards the mother and brother should not have been admitted in the absence of evidence that the complainants were aware of those specific instances.
Her Honour was strongly of the view that there was no reason to treat the evidence of violence towards those third parties as different to violence towards the complainants themselves. The relevant issue was whether the complainants either acquiesced or did not complain because of their fear of the appellant stemming from his violence. In her Honour's view, the fact of his violence, even if some instances of it were unknown to the complainants, was a relevant strand in establishing that part of the Crown case. The appeal against conviction was dismissed.
In my endeavours to look at cases in which the prior misconduct was not of a sexual nature but involved matters of the nature of a relationship including, in some instances, the administration of acts of violence, I should also make reference to a decision of Bellew J in R v A (No 2) [2015] NSWSC 76, a decision of February 2015. His Honour undertook an analysis, much of which overlaps with many of the submissions that have been made to me in the course of these proceedings. His Honour specifically made reference to Norman v R [2012] NSWCCA 230, as did Syme DCJ in her earlier reasons in the judgment that she delivered in July of last year and in Qualtieri v R as well as RG v R [2010] NSWCCA 173, R v Yates [2002] NSWCCA 520, DJV v R [2008] NSWCCA 272 and KTR v R.
The matter before Bellew J arose from a charge of manslaughter of the accused's infant son. The Crown case was based upon an allegation of gross criminal negligence based upon a failure by the accused to provide appropriate medical assistance to her son in circumstances where he was obviously ill. The evidence which was proposed to be led at trial included very wide‑ranging allegations that went to the essence of the nature of the relationship between the mother and the child during the course of the child's life, and going to circumstances of the relationship with another person. It is not necessary, for present purposes, to set out the detail of the various statements which are extensively recounted in his Honour's judgment. It was, to his Honour and would be to a reader of those various statements, apparent that many parts of the statements that were set out were plainly inadmissible as to form.
The Crown relied upon that evidence to establish: 1. the accused's general neglect of the deceased; 2. the general conditions under which the deceased had lived; 3. the general lack of care of the deceased by the accused; and 4. the deterioration in that level of care after the accused commenced the relationship with a person described as, or referred to as K.
The Crown disavowed any reliance upon the evidence as tendency evidence, and relied upon it as context evidence to meet what it was anticipated would be argued on behalf of the accused, namely that she was a good mother who was appropriately attentive to the deceased's needs, both medical and otherwise.
Of course, in the current matter, the accused in his recorded interview indicates that apart from the normal tribulations of a marriage, the marriage was quite different to that described by the complainant.
Her Honour, in giving consideration to the admissibility of what was manifestly evidence going to those various items that I have described, made specific reference to the detail of the observations that McClellan CJ at CL made in Qualtieri v R and I do not read what was said at [18] and [19] of his Honour's judgment.
I was making reference to the remarks of Bellew J in R v AN (No 2), and I was just about to indicate that I do not propose to read aloud what his Honour set out under the heading of consideration. It suffices to say that after reviewing the various authorities, and in addition to those that I have already mentioned, his Honour cited passages from KTR v R, from RG v R, and more recently, from Norman v R, as well as making specific reference to KJS v R [2014] NSWCCA 27, which was a judgment of the then Chief Judge at Common Law, Justice Hoeben.
His Honour concluded that in the case before him, the Crown had made it clear that it did not rely upon the evidence which was identified as tendency evidence, but as evidence of what was submitted to be the correct context in which the relevant offence took place. His Honour then took on board, if I might use the colloquial term for it, the observations regarding the correct approach, which had been set out in Qualtieri v R which I have made reference to earlier, and focused on the question of whether any issue had been raised in the trial that made the evidence relevant. His Honour in due course concluded that the evidence was relevant, and that there was no proper basis for its exclusion pursuant to S 137 of the Evidence Act 1995 (NSW), or pursuant to the discretionary exercises.
His Honour did say that much of the evidence was not in an admissible form and needed to be put into a form properly admissible, and his Honour also said regarding the facts before him, and quite contrary to the approach taken by Simpson J, to which I have made reference earlier in KTR, his Honour said: "I make it clear that the evidence that I propose to allow is restricted to evidence of the accused's treatment of the deceased, and is not to extend to the treatment of any of the accused's other children of the accused (as said)."
His Honour then dealt with specific acts of physical violence, and assertions in relation to that. Mr Terracini of Senior Counsel had argued that following the cessation or dropping of a murder charge and the pursuit of a charge of manslaughter, the relevance of that particular matter no longer existed. His Honour ultimately concluded that that was a correct submission, and in the way in which the Crown was crafting and putting its case, the evidence of the physical assaults was no longer relevant, and accordingly, by virtue of relying upon gross criminal negligence, the acts of violence were not relevant to the issue in the way they had been delineated before his Honour. Accordingly, his Honour said that even if he had concluded it was relevant, he would have exercised his discretion to exclude it.
My research did not lead me to any other cases of apparent relevance to circumstances where the prior conduct had differed in nature from the allegation of the particular offending conduct.
Having reviewed both the law and gone in terms through her Honour Syme DCJ's judgment, I am not satisfied that the interests of justice would lead to a conclusion that I should find myself not bound by her Honour's judgment. Indeed, I would go so far as to say to the extent necessary, that her Honour in the more restricted period of time that she had to undertake research, and focusing on the assistance that she was provided at both ends of the bar table, contrary to the submission put to me, in relation to cases in the relevant area, that whilst I have come to a view that there is not a miscarriage of justice which is clear and evident, in the event of the admissibility of the evidence dealt with by Syme DCJ, that in fact, her Honour, for the reasons that she articulated, reached an appropriate conclusion.
Accordingly, I am of the view that I am bound to her Honour's determination. There are some discrete areas that I should make specific reference to. I am of a similar view to her Honour in regard to the disposition of the sound recording, and I am in broad terms, in a similar position to her Honour regarding the 1800 web chat on 28 March and then the recorded communications on the 29th of March. There has already been undertaken some level of editing of that material, and I am certainly prepared to continue in that task, to the extent that it may be required to successfully reach a conclusion regarding that before me.
What has subsequently happened, of course, to make it abundantly clear, is that prior to my giving these remarks, or this judgment, the Crown indicated that a statement has been taken from the complainant on 23 March, which was Wednesday, and subsequently furnished to the Crown Prosecutor and to the defence, in which the complainant makes specific detailed and serious allegations of identified instances of sexual intercourse on earlier occasions. I have been advised that it is the intention of the director to file ex officio indictments in relation to those counts.
It is, and was, common ground, that the current empanelled jury could not simply continue, and somehow or other, three additional counts go into an amended indictment, and the interests of justice, in that regard, clearly require the discharge of the jury.
There remains alive a possible application in relation to the costs, which have undoubtedly been incurred as a result of the trial not being able to proceed, and Mr Brezniak, or the accused, has leave to bring any application that is desired to be brought, if necessary, back before me.
In all events, I grant leave for such an application to be made, if it is intended to bring one. I do not require the accused to make a decision about that instanter; obviously it will require some consideration of the relevant law and the circumstances.
Insofar as refinement of the detail, some of which was being argued before me yesterday, and some of which has been further identified in another email that was received earlier this morning, I am certainly prepared to deal with those matters to finality, either today, or at a convenient time next week. In relation to a new trial date, it would seem to me that the matter will simply need to go to Courtroom 3.1 next Friday, which hopefully will give the parties sufficient time to work out availabilities of witnesses, representatives, and the like.
I am not in a position to assist with any likely trial date at the moment. I did make an attempt to speak to the Listing Director before I came back upstairs, but I could not make any contact, so I cannot really assist in that regard at all.

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