R v AKB (No. 5)
[2018] NSWSC 1110
•17 July 2018
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v AKB (No. 5) [2018] NSWSC 1110 Hearing dates: 17 July 2018 Date of orders: 17 July 2018 Decision date: 17 July 2018 Jurisdiction: Common Law Before: Davies J Decision: 1. The evidence in paragraphs 10 to 12 of the statement of Malaly Iskandary is rejected
2. The evidence in paragraphs 13 and 16 of the same statement may be adduced.Catchwords: EVIDENCE – criminal law – relationship evidence – hearsay evidence from deceased – whether events in representations too remote in time to be relevant – whether evidence has probative value – whether probative value outweighed by prejudice to the accused Legislation Cited: Evidence Act 1995 (NSW) s 137 Cases Cited: R v AKB (No. 4) [2018] NSWSC 1082 Texts Cited: Nil Category: Procedural and other rulings Parties: Crown
[AKB] (Accused)Representation: Counsel:
Solicitors:
C Maxwell QC & R Kotsis (Crown)
C Davenport SC (Accused)
Office of the Director of Public Prosecutions (Crown)
Oxford Lawyers (Accused)
File Number(s): 2016/311049
JUDGMENT
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Objection was taken to the evidence in paragraphs 8-16 of the statement of Malaly Iskandary dated 24 November 2016. Those paragraphs read as follows:
8. I remember in February 2008, XY, WB and I were walking through a children's park on Pitt Street, Merrylands. We were walking around the park for about two hours.
9. Whilst we were walking, XY told me that AKB was angry at her because she said she was at home but she was actually at the shops. AKB was angry because he lied to her.
10. XY also told me that AKB was bad towards her now and when WB was three days old, he started to cry. AKB picked WB up and threw him down in to the cot and said too XY, "I don't like this child I told you not to give birth to the child".
11. When she told me this, I asked XY why she wasn't going to the Police about this. XY told me that she believed he would get better and AKB said that if she told the Police, when he got out of jail, he would kill her.
12. I also know that the nurses asked XY when she gave birth to WB if she had a good relationship with her husband and she said yes. I asked her why she didn't tell the nurse and she said that AKB had told her that if she was to tell the nurse, the government would take the baby away from her.
13. After this day, I kept asking XY how AKB was. XY told me he had gotten better but was still aggressive with WB. XY also said that AKB had stopped XY from talking to any other males and her family. He had changed the home phone so it could only accept incoming calls; no one could call out from this phone. This happened in 2009 but I cannot remember when.
14. At this time, XY and AKB were living in a unit on Good Street, Harris Park. I cannot remember the number for the home telephone or the unit number. But I remember their unit block is opposite a bus stop. I have pointed out to Detective Sutcliffe on a map where the unit was.
15. In 2009, XY told me that she caught him talking to another female on the internet. I asked AKB about this but he just argued with me about it and then after this, disconnected the internet from the unit.
16. A few years later, XY had a second child because WB was getting bored and she wanted another child. AKB asked her to have an abortion a few times but a doctor told her she would get a fine. So she kept the baby and gave birth to MB.
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During the course of argument the Crown indicated that it would not lead the material in paragraph 15.
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The evidence in these paragraphs can be divided into three categories. The first concerns the material in paragraphs 10-12 in relation to the accused’s attitude to the eldest boy WB.
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The second category is the material contained in the last three sentences of paragraph 13 which concerns the control that the accused was endeavouring to assert over the deceased.
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The third category is contained in paragraph 16 which relates to the accused’s desire for the deceased to have an abortion when she was pregnant with MB.
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WB was born in May 2007. The incident recorded by the witness in paragraphs 10-12, therefore, took place in May 2007. The incident relayed to the witness concerns an act of violence against the child and a threat by the accused that, if the deceased told the police about the incident, when he got out of gaol he would kill her.
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In R v AKB (No. 4) [2018] NSWSC 1082 I rejected evidence in the statement of Ms Iskandary and in another statement to the same effect, that the deceased said that the accused had bashed her when they were in Iran at some time between 2005 and 2007. I considered that, due to the lapse of time, the incident or incidents had low probative value, but in any event, that was outweighed by the prejudice to the accused under s 137 of the Evidence Act 1995 (NSW).
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In my opinion, the incident recorded in paragraphs 10-12 of Ms Iskandary’s statement is in the same category. Two other things point to the low probative value and the high level of prejudice in this material. The first is that there is other evidence in the case, including from the two boys themselves, that their father cares for them and looks after them. They appear to have a good relationship with him. I do not consider that this isolated incident which, I note, was not relayed to anybody else who has given evidence of what the deceased told them about the accused and his attitude to the children, is of any probative value.
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In relation to the threat to kill the deceased, there is no other evidence in the case that the accused ever made such a threat. The principal purpose of the relationship evidence being led by the Crown is to show that the relationship between the accused and the deceased had deteriorated particularly because of the attempts made by the accused to assert control over her. When the accused is now charged with her murder, I consider that a threat that might have been made in anger some nine years before the fire is highly prejudicial and that prejudice outweighs its probative value.
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I reject the evidence in paragraphs 10-12.
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The material in paragraph 13 is in a different category. There has already been evidence from a number of witnesses of things told to them by the deceased about the control the accused was asserting and was seeking to assert, and the deceased’s resistance to that control. I accept that the events described took place in 2009 but the nature of what is described is consistent with more recent complaints made by the deceased in relation to the accused obtaining access to her phone and her social media applications. I consider that this evidence has sufficient probative value notwithstanding that it occurred some seven years before the fire. The evidence tends to demonstrate a continuity of approach on the part of the accused.
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The evidence in paragraph 13 may be adduced.
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In relation to paragraph 16, evidence has already been admitted without objection from another witness who gave evidence of the same matter, namely, that the accused wished the deceased to have an abortion when she was pregnant with MB. In my opinion the evidence may be adduced for that reason.
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Amendments
26 July 2018 - Publication restriction removed
Decision last updated: 26 July 2018