R v Al-Harazi - [2016] ACTSC 250

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Al-Harazi
Citation:	[2016] ACTSC 250
Hearing Dates:	11 August 2016
DecisionDate:	2 September 2016
Before:	Robinson AJ
Decision:	The application to adduce tendency evidence is dismissed
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – tendency application – s 192A Evidence Act 2011 (ACT) – whether the evidence has significant probative value
Legislation Cited:	Evidence Act 2011 (ACT), ss 55(1), 65, 97(1), 97(1)(b), 101(2), 192A
Cases Cited:	El-Haddad v R (2015) 88 NSWLR 93 IMM v The Queen (2016) 90 ALJR 529 Sio v The Queen [2016] HCA 32
Texts Cited:	Cross on Evidence, 10th Aust ed (2015)
Parties:	The Queen (Crown) Mohammed Mdwali Al-Harazi (Accused)
Representation:	Counsel Mr S Drumgold (Crown) Mr K Archer (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)
File Number:	SCC 207 of 2015

ROBINSON AJ:

The current matter before the Court concerns applications under s 192A of the Evidence Act2011 (ACT) for advance rulings on leave to adduce tendency evidence and the admissibility of what the parties called “relationship evidence”. After the commencement of the matter before me, I declined to embark upon a consideration of the admissibility of the relationship evidence. I did so because I was of the opinion that the admissibility could not be usefully determined ahead of the trial and would be most probably affected by the course of the trial.

The accused is currently to be tried on 5 September 2016 on a charge that he murdered his wife, Sabah Al-Mdwali, on 17 March 2015 by stabbing her repeatedly with a knife at their residence at Unit 4, 135 Knokes Avenue, Gordon.

The cause of death appears to be the loss of blood from the wounds inflicted upon the deceased. This cause of death is not in dispute, at least for present purposes. The autopsy revealed that the deceased had been stabbed 54 times.

The accused, when interviewed by the police, contended that Mohammad Al-Mdwali, his father-in-law, and his 15 year old brother-in-law, Faisal Al-Mdwali, were responsible for the stabbing.

Tendency

The fact in issue, for present purposes, is the identity of the person or persons that inflicted the fatal wounds. The Crown enlarged upon this statement when I suggested it in argument:

HIS HONOUR: Do you agree that the fact in issue for our purposes is the identity of the killer?
MR DRUMGOLD: It is. It is a – yes, it is. That is a little simplistic in the context of this case though. I have couched it in my mind by way of two propositions. Proposition one is, it was the accused who stabbed the complainant in what we say was a clearly highly frenzied attack. Proposition two which is, as suggested by the accused, it was the deceased’s father and/or brother who stabbed the complainant. So the relevant fact in issue is, what could – in this term, what could render proposition one more probable, or what could render proposition one less probable.
HIS HONOUR: Yes.
MR DRUMGOLD: Or to the contrary, what could render proposition two more probable or what could render proposition two less probable. That is essentially how I have couched it in my mind. But your Honour, from an umbrella approach, that’s correct. The identity of the person who inflicted 51 stab wounds is the key issue in the trial, although, as I say, it’s somewhat more complicated because in a record of interview, the accused has effectively constructively nominated two other people as - - -

By an amended application, the Crown sought leave to adduce evidence of three incidents to make out that the accused has a tendency to act in a particular way, namely, to use knives in situations of inter-personal conflict.

The application is made under s 97(1) of the Evidence Act 2011 (ACT) which I will call “the Act” in these reasons. The section is as follow:-

(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a) the party seeking to present the evidence gave reasonable notice in writing to each other party of the party's intention to present the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.

No point is taken by the accused on the giving of reasonable notice.

The three incidents, as summarised from extracts contained in the amended application, are:-

1.On 16 March 2010, when the deceased and the accused lived at 10A Hallstrom Circuit, Monash, police were called to attend a disturbance. Police arrived at about 11:50pm. The deceased (with the assistance of an interpreter) told police that earlier on 16 March 2010 she and the accused were at her parents’ house. The accused’s car had broken down at some stage. After she and the accused returned home the accused became angry at her, blaming her and her family for making fun of him. The accused told the deceased to make dinner which she did. He told her he did not like the dinner and told her to make it again which she did. There was a verbal argument. The deceased told the accused she was going to ring her brother to collect her and the children. The accused pushed her against a wall while holding a knife. The accused told the deceased he would kill her and the children before he let her go with her family. She was scared and upset as were the children. She tried to get the knife off him. The accused cut himself. The accused slapped Akram (then two years old) twice across the face and slapped Maysa, (then four months old) once across the face. The deceased rang the Al-Mdwali household asking for her father to come over. Her father sent her brother Salah.
2. Around 22 December 2014, the deceased went to her parents’ house after an argument with the accused. She told members of her family that the fight was about her reluctance to return to Yemen. She stayed the night at her parents’ house. The following day, she received a video message on her phone form the accused depicting damage to the interior and furnishings of their house in Gordon. The video also depicted the children being asked whether they preferred to stay in Australia or return to Yemen. The deceased’s sister Manal Al-Mdwali also viewed the video.
The deceased sent the video on to Nawal Al-Mdwali explaining that, “This video is a message for me”.
The following day, the deceased’s brother-in-law, Mohammed Al-Sabri attended the Knokes Avenue premises, and observed damage to fixtures and furnishings, which had looked as they had been stabbed. Al-Sabri asked the accused who caused the damage, and the accused replied, “I done this to get rid of the furniture because I’m going to Yemen.”
3. On the night of 27 or 28 January 2015 the accused and the deceased fought over his reluctance to take medication prescribed to him. As at 28 January 2015, he had been prescribed Lexapro (20mg), which was filled at the Lanyon Pharmacy on 16 January 2015. He was verbally abusive towards the deceased. The accused was heard shouting loudly in Arabic by several neighbours, some of whom contacted the police.
The deceased’s parents went to the deceased’s premises. The deceased’s brother Salah attended a short time later. The accused verbally abused Mohammed and hit him in the head. The accused went to the kitchen and returned with a knife. The deceased’s mother, who was present during the argument, saw the accused holding the knife behind his body. Police attended. Police spoke to the accused, with the assistance of Faisel Al-Mdwali, who was also there. The accused confirmed to Police that the argument was over some medication.

As the application progressed it became desirable to consider the underlying facts, as they will be presented to the jury, relating to these incidents before coming to consider the application of the provisions of s 97(1) and then considering s 101(2) of the Act. Although I have made some observations on the underlying facts, those observations are subject to the law to be applied concerning credibility and reliability under s 55(1) and s 97(1) of the Act.

Evidence of Incident 1

The only evidence concerning this incident is given in the transcript of a conversation between police and the deceased. The conversation took place through an interpreter and occurred very soon after the incident. At Ex TS-11 the following appears-

Q20. Okay, what can she tell me about what has happened tonight, Sabah?
A INTERPRETER: (Foreign language spoken)
AL-MDWALI: (Foreign language spoken)
INTERPRETER: (Foreign language spoken)
AL-MDWALI: (Foreign language spoken)
INTERPRETER: We went to my family’s house, and my husbands car broke down, and when we went back home he was upset and, um, he was saying, “You are the reason” and “your family they make – well, they make fun of me” and um – and – sorry, and then he said, um, sorry, he said to make him dinner or fix dinner for him, so I did, I give it to him, he said, “No, I don’t like it.” So I fixed it again, and then he was saying, um, you know, using foul language and was screaming, and then he hit the kids, and I didn’t say anything, and he picked up the knife and he said, “If you call your family, I’ll stab you.” So he was saying that.

...
Q43. But why did he throw her against the wall? What happened?
A INTERPRETER: (Foreign language spoken)
AL-MDWALI: (Foreign language spoken)
INTERPRETER: Because I tried to get to the kitchen so I – just to avoid him, and I said that – also that he doesn’t scream, so he pushed me to the wall, and he held a knife and he said, “Don’t call your parents or I’ll kill you”.

...
Q44. So he was holding the knife when he pushed her and made a threat?
A INTERPRETER: (Foreign language spoken)
AL-MDWALI: (Foreign language spoken)
INTERPRETER: Yes.

...
Q45. Did she believe he would kill her?
A INTERPRETER: (Foreign language spoken)
AL-MDWALI: (Foreign language spoken)
INTERPRETER: No.
AL-MDWALI: (Foreign language spoken)
INTERPRETER: Just threats.

...
Q51.And has she has her son with us now, and he’s got blood on his shirt, where – who’s blood is that?

A INTERPRETER: (Foreign language spoken)
AL-MDWALI: (Foreign language spoken)
INTERPRETER: It’s Maged’s, (indistinct) from Maged’s hand.
AL-MDWALI: (Foreign language spoken)
INTERPRETER: Okay, yeah, because when he had the knife in his hand and I’m trying to get it from him, to – well, and to calm him, and he had it in his hand.

...
Q52. With the blade of the knife?
A INTERPRETER: (Foreign language spoken)
AL-MDWALI: (Foreign language spoken)
INTERPRETER: (Foreign language spoken)
AL-MDWALI: (Foreign language spoken)
INTERPRETER: Yes.

It is clear that that evidence is hearsay and would only be admissible under an exception to that rule. I was informed that the Crown is to rely upon s 65 of the Act at trial. If that is so, then consideration will need to be given to the recent discussion of s 65 of the Act in Sio v The Queen [2016] HCA 32 at [45]-[74]. For obvious reasons, there can be no cross-examination on that evidence. There is also no corroboration of that evidence.

A different difficulty arises because the incident takes place five years before the death of the deceased.

The fact that the evidence is obtained through an interpreter has the potential to add a layer of imprecision.

Evidence of Incident 2

The evidence concerning incident 2 is given by Mohammed Al-Sabri. He made a statement to police dated 8 July 2015, which became Ex TS-22 on the application. The witness says at par 38-

When I arrived I knocked on the door. Maged open the door and I went inside and I was shocked. The living room was like an earthquake had happened. The TV had been knocked over in the middle of the room, the screen facing up which was all cracked. There was two different sofa’s. The majority were red with some other colours. The other sofa was light grey. The sofas were ripped on the backs and the arm rests and looked like they had been stabbed. There were books, plates, cups broken on the floor.

The witness expresses a conclusion in the form of a simile to describe the appearance of the furniture. This is very imprecise language. I was not told that the witness could and would, at trial, be better able to describe the condition of the furniture. Apparently, a video recording of the scene at the house was taken but it does not assist on this issue. My attention was directed to Ex TS21 at Q & A 202-203 for completeness. I do not think these passages assist on the issue.

The incident occurs about 15 months prior to the deceased’s death.

Evidence of Incident 3

The evidence of this incident is given by Amena Al-Harazi. That witness participated in a record of conversation with police on 17 March 2015 through an interpreter. The transcript became Ex TS 24 on the application. The Crown directed my attention to Q. & A. [205]-[212].

It is convenient to set out the questions and answers from [209] to [212]-

Q209. Was there any physical violence?
A INTERPRETER: (Foreign language spoken)
AL-HARAZI: (Foreign language spoken)
INTERPRETER: The last time the problem there was no physical violence, but there was a lot of yelling and swearing and a lot of insults towards Sabah, he was yelling at her and swearing at her like um, really badly, and he was – he was acting really angry and really crazy, she was trying to give him a tablet um, to calm him down, apparently he does have tablets when he’s really angry, and she was trying to get him – Sabah was trying to give Maged a tablet and he wouldn’t have the tablet, and he was telling her like, “Ah, you want now give me the tablet, I don’t want to have the tablet,” which he usually has as Amena said to calm him down, and then when he wouldn’t stop yelling, Sabah called her mum, and she told, “Like come he’s yelling, I mean I can’t handle him, I can’t put up with this anymore,” so they came and then her husband, Amena just went in first by herself, at that time he wasn’t just yelling at Sabah, he had opened the window as we were saying earlier, and he was yelling and then the neighbours were actually could hear him yelling, so Amena came in to try and calm him down, but he started yelling at her and swearing at her and um, and then at that time um, the husband came in, Amena’s husband came in, and um, at that point Maged started swearing at him, and that’s when he sort of punched him or hit him on the ear, um, he –Maged went to the kitchen as well and grabbed the knife, um, he grabbed the knife um, and he came back - - -
AL-HARAZI: (Foreign language spoken)
INTERPRETER: - - - and then when he saw them he just sort of held the knife back, he didn’t actually act with the knife, at that time um, the neighbours were calling the police, the neighbours had called the police, so then, Amena and Mohammed and Sabah they left the house, they went outside, when the police arrived Mohammed, and Maged was inside the house, and the kids were upstairs, they weren’t sleeping but they were just lying down, when the police came he was acting very calmly with them, and that’s why she doesn’t know if he’s crazy and he just has those episodes or whether he really is a good liar, because when the police came he was acting so calmly as if you know, there was no anger or yelling involved at all. And that’s when the police told them, “That he’s okay, he seems calmer, they’re his kids as well.”

Q210. Just on that particular incident, did you see him with the knife?
A INTERPRETER: (Foreign language spoken)
AL-HARAZI: (Foreign language spoken)
INTERPRETER: Yes I saw him. So she um, Amena saw him holding the knife, Mohammed, Amena’s husband, seen him holding the knife, because when Maged was yelling and swearing at him, Mohammed was really upset and he sort of he turned around and he was standing, and we’re just like, “Leave him,” especially after Maged hit Mohammed, like he thought, like he’s got in his mind, in his mind he would actually – there like you know, and hit his father in law which is like ah, he should respect as a father in that culture, in our culture. So she saw him holding the knife, but when um, she saw – when he saw that she saw them, sorry, when (indistinct)
AL-HARAZI: (Foreign language spoken)
INTERPRETER: scared and sort of he held the knife back, so, she’s the only one and she told him - - -
AL-HARAZI: (Foreign language spoken)
INTERPRETER: Yeah, so maybe it was just me trying to threaten or maybe he was just wanting the knife, he thought we were going to stay at the house, but when he saw that his father in law was leaving, he sort of – he held the knife back. And um, yes, I think that’s all.

Q211. Can you – can she – can you describe the knife?
A INTERPRETER: (Foreign language spoken)
AL-HARAZI: (Foreign language spoken)
INTERPRETER: Okay, so I don’t really remember or know how to describe the knife, but I know that I saw the handle of the knife, a bit of it was showing, it was like a wooden or timber the look of it um, yeah.

Q212.So okay. If you can – if she can picture the knife in his hand in her own mind, was it a kitchen knife, or did it have like a serrated edge. Is there anything about the blade that she can recall?
AINTERPRETER: (Foreign language spoken)
AL-HARAZI: Okay. (Foreign language spoken)
INTERPRETER: Okay. So I didn’t see the blade of the knife, it was just the top of the handle of the knife, I couldn’t see what the end was like, straight and pointed end. That sort of knife.

On a reading of the extract of this incident contained in the amended application, there is left open the possibility that the accused may have resorted to the kitchen to obtain a knife for self-defence purposes. At the hearing, I was informed that as a result of a proof taken from Mohammad Al-Gadir on 4 August 2016, by officers of the DPP, there is to be tendered an admission made by the accused in the following context-

MR DRUMGOLD: There was an argument outside and Avo Salar left. This was in the first attempt when Avo Salar refused to allow Savar, his daughter, the deceased to return back to the accused respondent. And he says this:
When Avo Salar left Hussain’s house - which is the house where the discussion was taking place – Majad was still there. Mohammed Al-Gadir said he spoke to Majad and asked him about the knife and Majad said, “No, I didn’t use it.” But then Mohammed said to him, “Come on, tell me because Avo Salar is not here.” And Majad said, “Fazal was shouting at me, so I held the knife to protect myself.”

So we say that is an admission by the respondent to possessing a knife.
HIS HONOUR:        Well, possessing a knife.
MR DRUMGOLD:      Yes.
HIS HONOUR:        But then it has got another aspect to it.
MR DRUMGOLD:    To defend himself.
HIS HONOUR:        Yes.
MR DRUMGOLD:     Yes.

There is no further evidence relating to this incident.

Principles of law

There is a degree of logic behind tendency evidence in relation to, in this case, acting in a particular way. The law looks at the evidence of previous behaviour and relates that behaviour to the behaviour in question. The strength of that relationship must vary with the degree to which circumstances under which the past behaviour occurred, correspond with the circumstances pertaining to the behaviour in question. It must also vary with the degree to which the circumstances in question control or dictate the behaviour arising from those circumstances.

As was pointed out by the Crown in argument, evidence that will increase the probability of the accused being the perpetrator of the murder is rationally probative as is, in the circumstances, evidence which will decrease the probability of the alternative hypothesis suggested to police by the accused. I accept the potential probative value of the evidence. (See s 55(1) of the Act and definition of probative value.)

The majority decision in IMM v The Queen (2016) 90 ALJR 529 at [38]-[39] requires me to determine the admissibility of evidence under s 55(1) of the Act on the basis that the evidence will be accepted by the jury and be treated as credible. I am required under that section to also accept the reliability of that evidence. (See IMM at [52].)

Leaving s 55(1) of the Act and going to the requirements of s 97(1)(b) of the Act, the criterion of “probative value” becomes “significant probative value”. The latter expression is not defined in the Act.

In IMM at [46], the majority give apparent approval to the suggestion in Cross on Evidence as to the expressions meaning:

Cross on Evidence suggests that a "significant" probative value is a probative value which is "important" or "of consequence". The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding.

Consistently with the reasoning concerning the admissibility of evidence under s 55(1) above, the majority decision in IMM again requires me to not apply any tests of reliability or credibility to the admissibility of the evidence sought to be adduced for the purposes of s 97(1)(b) of the Act. (See IMM at [54]).

In this case, it is appropriate to take account of the fact that there are three incidents relied upon: The dates of those incidents: The degree of similarity between the circumstances of those incidents and the circumstances of the murder: The generality of the tendency alleged, being to use knives in situations of inter-personal conflict.

Decision

A number of matters may be noticed. First, and in my mind quite significant, is the fact that there is no evidence that the accused has ever stabbed any person or even attempted to stab any person. That of course is not an end to the matter but it is difficult to see how the three quite different incidents, occurring over the five year period, allow an inference to be drawn on that evidence, to the requisite standard, probative on the issue that the accused was the person who inflicted 54 stab wounds upon the deceased.

The generality of the expressed tendency is itself troubling in the reasoning process to be applied in the circumstances of this case. Leeming JA in El-Haddad v R (2015) 88 NSWLR 93 gave an illustration of this process where he observed at [72]:

That is to say, the specificity of the tendency directly informs the strength of the inferential mode of reasoning. It is easy to see why. It is, for example, one thing to say that a man has a tendency to steal cars; that says something, but not very much, as to whether he stole a particular car the subject of a charge. It is quite another to say that a man has a tendency to steal black European sports cars and then set them on fire, if the fact in issue is whether that man stole and burnt a black Porsche.

Although I can see that the evidence of the three incidents taken together and with other evidence in the case has the capacity to be probative of the fact in issue, I am unable to be satisfied that that evidence has significant probative value on that issue. It is a “simply unconvincing” case, to use the language of IMM at [50].

In this circumstance I do not have to consider the application of s 101(2) of the Act. That section requires the probative value of evidence to be weighed against the incommensurable prejudicial effect of that evidence.

Order

I dismiss the application to adduce tendency evidence. Of course, this consequence does not mean the evidence is not admissible on some other basis.

I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson

Associate: V Wei

Date: 2 September 2016

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