Adel Ebrahimi (a pseudonym)[1] v The Queen

Case [2022] VSCA 65

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0162

ADEL EBRAHIMI (a pseudonym)[1] Applicant
v
THE QUEEN Respondent

[1]Because this is an interlocutory appeal, a pseudonym has been used in place of the name of the applicant and the reasons have been prepared in a form which omits identifying details.

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JUDGES: MAXWELL P, SIFRIS and MACAULAY JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 25 February 2022
DATE OF JUDGMENT: 13 April 2022
MEDIUM NEUTRAL CITATION: [2022] VSCA 65
JUDGMENT APPEALED FROM: [2021] VCC 1618 (Judge Hassan)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence – Evidence of incriminating conduct – Charges of rape, assault and related offending – Separate charge of perverting course of justice – Offer of payment to complainant to withdraw allegations – Whether conduct reasonably capable of being viewed by jury as evidence of incriminating conduct – Whether probative value of evidence outweighed by danger of unfair prejudice – Leave granted but appeal dismissed – R v Ciantar (2006) 16 VR 26, House v The King (1936) 55 CLR 499 applied – Criminal Procedure Act 2009, s 295 – Jury Directions Act 2015, ss 18, 20 and 21 – Evidence Act 2008, s 137.

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APPEARANCES: Counsel Solicitors
For the Applicant Mr J Lavery Tony Danos
For the Respondent Mr C Boyce SC
with Ms G McMaster 		Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P

SIFRIS JA

MACAULAY JA:

Introduction and summary

  1. The applicant is facing one charge of rape (charge 1), five charges of various assaults and related offending (charges 2–7) and one charge of attempting to pervert the course of justice (charge 8). The question on this application for leave to appeal pursuant to s 295 of the Criminal Procedure Act 2009 (‘CPA’) is whether the trial judge erred in failing to sever charge 8 from charges 1–7 on the indictment.  The applicant’s position was (and is) that the evidence on charge 8 was not admissible in the trial of charges 1–7 and that charge 8 should therefore have been severed.  

  2. The evidence to be led in support of charge 8 is that the applicant arranged for an associate to offer money to the complainant to have her withdraw her complaints of rape and assault (‘the charge 8 conduct’).  The prosecution seeks to rely on that evidence as evidence of incriminating conduct in proof of charges 1–7.  Under the Jury Directions Act2015 (‘JDA’), incriminating conduct is relevantly defined as ‘conduct that amounts to an implied admission by the accused of having committed an offence charged or an element of an offence charged’.[2] 

    [2]JDA, s 18.

  3. An essential condition for being permitted to rely on particular evidence as evidence of incriminating conduct is that the trial judge determines that the relevant evidence is ‘reasonably capable of being viewed by the jury as evidence of incriminating conduct’.[3]  A jury may only treat evidence as evidence of the accused’s belief that he…

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Adel Ebrahimi (a pseudonym)[1] v The Queen [2022] VSCA 65
Case
[2022] VSCA 65
Decision Date

CaseChat Overview and Summary

The applicant, Adel Ebrahimi, sought leave to appeal an interlocutory decision of the County Court of Victoria, which was to admit evidence of conduct in respect of a separate charge of perverting the course of justice. The evidence was to be adduced as evidence of incriminating conduct in respect of seven other charges. The appeal was allowed, but the appeal against the interlocutory decision was dismissed. The applicant was charged with seven offences, including rape and assault, and an eighth offence of perverting the course of justice, which related to an offer made to the complainant to withdraw her allegations. The applicant sought to exclude the evidence of the eighth charge under s 137 of the Evidence Act 2008 (Vic). The judge found that the eighth charge conduct was reasonably capable of being viewed by a jury as incriminating conduct, and that its probative value was not outweighed by the danger of unfair prejudice. The Court found that the judge’s conclusion was open to her and followed a rational process. The evidence of the eighth charge conduct was therefore to be admitted.

The Court’s decision in this case provides guidance on the admissibility of evidence of separate offending under s 137 of the Evidence Act. The Court found that the probative value of the evidence was significant, and that the danger of unfair prejudice was not sufficient to exclude the evidence. The Court also found that the judge’s conclusion was open to her and followed a rational process. This case is therefore likely to be of assistance to practitioners in cases where evidence of separate offending is sought to be adduced under s 137 of the Evidence Act.

Orders

Orders of the court

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Background

Background to the litigation

In this Court, the applicant reagitated the two arguments made before the judge. For reasons which follow, leave to appeal the interlocutory decision is granted but the interlocutory decision is affirmed.Relevant background In November 2017, the applicant and the complainant commenced living together as partners in a unit in a northern suburb in Melbourne. On the prosecution case,[7] the applicant and complainant ‘broke up’ in March 2019. Although the complainant continued to live in the unit with the applicant, her evidence will be that because she had nowhere else to live she slept on the downstairs couch while the applicant slept in the upstairs bedroom. The applicant denies that he and the complainant ‘broke up’.[8] [7]Taken from the amended summary of prosecution opening (‘prosecution summary’).[8]Taken from the defence response to the prosecution summary. On 6 April 2019, the complainant made a statement to the police alleging that she was raped by the applicant at the unit on 2 April 2019, and further assaulted by him at the unit on 6 April 2019. Following those allegations, the applicant was interviewed by police on 7 and 18 April, and arrested, charged and remanded in custody on 18 April 2019. Seven charges were laid: a charge of rape occurring on 2 April 2019 (charge 1) and, from the incidents on 6 April 2019, charges of assault with intent to commit a sexual offence (charge 2), conduct endangering a person (charge 3), intentionally causing injury or, in the alternative, recklessly causing injury (charges 4 and 5), common assault (charge 6) and making a threat to kill (charge 7). In her reasons, the judge explained the applicant’s defence, and thus the issues for trial, in these terms:[9] [The applicant] denied the offending. He said all sexual activity between himself and the complainant was consensual. He said he and the complainant had enjoyed a good relationship but in the last three weeks she had become verbally abusive as well as ‘totally violent’ because he had befriended another woman on Instagram. The issues at trial will therefore be whether the sexual conduct the subject of charge 1 was consensual and, in respect of charges 2–7, did the conduct described by the complainant occur?[9]Reasons, [2].Charge 8 The charge 8 conduct occurred in July 2020 while the applicant was remanded in prison, having remained there since his arrest in April 2019. The background to the conduct, and the conduct itself, was summarised by the trial judge as follows:[10][10]Reasons, [10]–[18].On 15 November 2019, a family violence intervention order was granted where the complainant was the protected person and the [applicant] was the respondent. The order prohibited the [applicant] from contacting the complainant or having anyone do so on his behalf. The order was served on him the same day.On 12 July 2020, the [applicant] phoned a friend of his … from Ravenhall Prison. The call was recorded by Ravenhall and later translated into English. During the phone call, [the friend] told the [applicant], if he wanted, ‘we can make it ok’, and the [applicant] asked, ‘How can you make it ok? Give me an idea.’ [The friend] asked, if the complainant withdrew her complaint, would everything be OK? The [applicant] said, ‘that’s it’, ‘I swear by Q’ran’.[The friend] offered to talk to the complainant to see if she wanted any money so they could give it to her. The [applicant] said she had already taken his car. [The friend] suggested he would offer the complainant $30,000 or $40,000 and to keep the car, to withdraw the charges. [The friend] said, ‘if you are happy, we can go make such suggestion to her’, and the [applicant] said to put two mobile phones in his pocket and record it. [The friend] said he would call her to meet. The [applicant] then told [the friend] not to call her, but to meet her in person and record it. [The friend] said he would call her and meet her. He said he would tell her to ‘come and withdraw [her] consent, keep the car for yourself, we will also give you $30,000–40,000’. The [applicant] told him to put his mobile in his pocket and record it.The [applicant] made the arrangement with [the friend] for the purpose of having the complainant withdraw her complaint for the alleged offending that was before the County Court. In furtherance of the arrangement, [the friend] phoned the complainant later the same day, at 3:54 pm on 12 July 2020, but the complainant had blocked his number. She received a call from a male saying to call [the friend] and providing mobile number […]. This number was registered to [the friend]. The complainant unblocked his number and called [the friend] back at 7:22 pm to tell him not to pass on her number to anyone.[The friend] told the complainant he had to see her and he had a message from the [applicant]. He said to come to the police station with him and withdraw the charges and the [applicant] would pay her $100,000. When she refused, [the friend] said if she did not want to do that, then don’t turn up at Court. He said if she didn’t turn up at the trial, there would be $100,000 waiting for her. He added, ‘if you don’t turn up at Court, the case will be withdrawn and dropped’. [The friend] kept saying he had a message from the [applicant] to pass on to her. He told her to keep the car from the [applicant] and he wanted to pay her $100,000 for her not to turn up at Court and the case will be dropped. [The friend] said he wanted to meet her in person.When the complainant asked why the [applicant] didn’t call her himself, [the friend] said because there was an intervention order. The complainant did not meet up with [the friend].The car was a Mercedes Benz valued at about $50,000. It had been jointly owned and when they separated, the complainant had put it in her own name.On 14 July 2020, the [applicant] phoned [the friend] again. The call was recorded by Ravenhall and later translated into English. In the call, [the friend] told the [applicant] what he had done in furtherance of their arrangement. He said he called the ‘bitch’, she blocked his number and she didn’t want to talk to him. He said he tried everything but she would not come. The [applicant] told [the friend] not to give the details on the phone.[The friend] then said he told her, ‘the thing you have taken [the car] could stay’ with her and they would give her even more. He said the complainant said she owned the car. He said, ‘let’s give this to you and you withdraw your complaint’. When the complainant said the government was now engaged, [the friend] said he told her to ‘simply come and withdraw your consent’. In response, the [applicant] said to forget about her, and not to contact her anymore, as they would follow the matter legally.

Evidence

Evidence Before The Court

For that reason, it was well open to the judge to find that, on the basis of the evidence as a whole, the charge 8 conduct was reasonably capable of being viewed by a jury as incriminating conduct. Indeed, we would have reached the same conclusion ourselves. Should the evidence have been excluded under s 137 of the Evidence Act? As noted, House principles govern appellate review of the decision under s 137 of the Evidence Act. Accepting that position, the applicant argued that the judge either failed to take into account a relevant consideration or, alternatively, reached a conclusion that it was not open to her to reach. As we will explain, these two arguments were somewhat interconnected.Reasons In the Reasons, the judge first addressed the probative value of the charge 8 evidence as evidence of incriminating conduct for charges 1–7. Having accepted that a jury, properly instructed, could be satisfied that the conduct did amount to an implied admission of guilt, the judge was right to view the evidence as carrying significant probative force. As to the danger of unfair prejudice, the judge considered a submission made by the applicant that, in order for him to advance his alternative explanation for that conduct, he would need to elicit evidence that was prejudicial to himself. That is, in order to rebut the prosecution’s explanation of the conduct, he would be forced to reveal that he had been in custody on remand for a long period of time before July 2020 and, potentially, that he had been refused bail on several occasions. Thus, the likely unfair prejudice of the charge 8 evidence was said to arise not from the evidence itself, but rather, because its reception would oblige the applicant to lead other evidence damaging to himself in order to make good his exculpatory explanation. In rejecting the applicant’s submission that the danger of unfair prejudice outweighed the probative effect of the evidence, the judge said as follows: The evidence does have a prejudicial effect in that the jury will become aware that the accused is in custody. It is not uncommon in criminal trials for juries to become aware that an accused is in custody. In this case, there is no suggestion that the jury will become aware of any criminal conduct on the part of the accused that goes beyond the charges on the indictment. It is also not necessary that the jury be made aware that the accused has been in custody since April 2019. The prosecution would not necessarily seek to lead this fact. However, it was the defence’s submission that if the evidence of the phone conversations is admissible, the defence may have to rely upon the evidence of the accused having been in custody since April 2019 in order to put the alternative explanation for the accused’s conduct to the jury, that is, he was desperate to get bail. As I discussed with Mr Lavery, who appeared on behalf of the accused, in these circumstances, the evidence would be before the jury at the behest of the defence and on the basis of a forensic decision made by the defence.In any event, in my view, any prejudice arising from the disclosure of the accused’s custodial status can be properly addressed by clear judicial direction to the jury not to reason that he is guilty or that he is the type of person likely to have committed the offences. It could be explained to the jury that this is not an uncommon situation and it remains for the jury to determine whether the accused is guilty or not guilty on the basis of the evidence presented at the trial and whether the evidence establishes that the prosecution has proved its case beyond reasonable doubt.[27][27]Reasons, [27]–[28] (emphasis added).Submissions in this Court

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In support of his second point, the applicant emphasised that charges 1–7 involved two discrete occasions of alleged offending: the alleged rape on 2 April 2019 and the alleged assaults and related offending on 6 April 2019. As the trial judge noted, the applicant has a markedly different defence to each group of offences. For the rape, sexual intercourse is admitted but consent (and belief in consent) is the issue. For the charged offences on 6 April 2019, the acts themselves are denied. As a result, the applicant submitted, the argument for an inferred belief of guilt necessarily involved so many permutations as to make it impossible to attribute any such belief to any particular offence. Consideration of the two points While we can ultimately address both points together, we commence with the second of the applicant’s two points. The argument about difficulty in attributing the implied admission of guilt to any one of a number of specific offences charged is answered by analogy with this Court’s decision in R v Ciantar (‘Ciantar’).[24] In Ciantar, the Court allowed for the possibility that an applicant’s post-offence conduct could be explained by him being conscious that he had committed one or more lesser offences, as opposed to the offence charged. But it did not follow, the Court held, that the post-offence conduct could not be left to the jury as something that was capable of supporting an inference that the applicant was conscious that he had committed ‘the offence charged’.[25] Accepting that there may be some circumstances in which post-offence conduct is ‘intractably neutral’, the Court said it was not to be assumed that it would usually be so and it was not likely to be so in many cases.[26][24](2006) 16 VR 26, 39 [39] (Warren CJ, Chernov, Nettle, Neave and Redlich JJA); [2006] VSCA 263.[25]Ibid.[26]Ibid 39 [40]. Plainly, this is not a case in which the post-offence conduct could be said to be intractably neutral. The nature of the charge 8 conduct is such that the inferred awareness of guilt is capable of being viewed as referable to all of the charged conduct. That is how the jury will be invited to view it. We think it most unlikely that the inferred awareness could be viewed as referable only to the rape count, or only to the assault counts, or only to one or some of those assaults, but acceptance of that possibility does not affect the admissibility of the evidence. We return to the first point, which challenges the judge’s conclusion that the jury could reasonably conclude that awareness of guilt was the only explanation of the charge 8 conduct. On the material before the Court, there is a clear rational pathway by which the jury could reach that conclusion. Put shortly, the sheer scale of the inducement offered to the complainant would enable a jury to reject as wholly implausible the alternative explanation put forward for the conduct. That is, the jury could reasonably conclude that the applicant would only have made such an offer because he knew that the allegations against him were true, that the complainant was determined to proceed and that, as a result, he needed to offer a very substantial sum of money to dissuade her.