R v Atroushi - [2001] NSWCCA 406

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Atroushi [2001] NSWCCA 406

FILE NUMBER(S):
60848/98

HEARING DATE(S): 20/9/01

JUDGMENT DATE: 12/10/2001

PARTIES:
Regina
Safar Atroushi

JUDGMENT OF: Giles JA Howie J Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/21/2058

LOWER COURT JUDICIAL OFFICER: O'Reilly DCJ

COUNSEL:
R A Hulme (Crown)
C J Watson (App)

SOLICITORS:
S E O'Connor (Crown)

CATCHWORDS:
Conviction Appeal - stalking - whether relationship evidence admissible - whether probative value of evidence outweighed by danger of unfair prejudice.

LEGISLATION CITED:
Crimes Act 1900, s 35, s 93G(1)(a)(i), s 562AB
Criminal Procedure Act 1986, s99
Evidence Act, 1995, s 55, s 135, s 136, s 137.

DECISION:
Appeal dismissed.

JUDGMENT:

- 20 -

IN THE COURT OF

CRIMINAL APPEAL

60848/98

GILES JA
HOWIE J

CARRUTHERS AJ
Friday 12 October 2001

Regina v Safar Atroushi

JUDGMENT

GILES JA: I agree with Carruthers AJ.
HOWIE J: I agree with Carruthers AJ.
CARRUTHERS AJ: Safar Atroushi appeals against his convictions at the Liverpool District Court on 3 September 1998. The appellant was arraigned before his Honour Judge O’Reilly QC and a jury of 12 at the Liverpool District Court on 31 August 1998 upon an indictment containing 3 counts. The first count charged that between 25 January and 29 January 1998 at Liverpool, the appellant did stalk Shekurd Atroushi with the intention of causing her to fear personal safety: see s 562AB of the Crimes Act 1900 (hereinafter “the Act”). This offence is commonly referred to as stalking.
The second count charged that the appellant, on 28 January 1998 at Liverpool, did maliciously wound Shiwan Atroushi: see s 35 of the Act.
The third count charged that on 28 January 1998 at Liverpool the appellant did possess a loaded firearm, namely a rifle, in a public place: see s 93G(1)(a)(i) of the Act.
The appellant pleaded not guilty to each count. On 3 September 1998 the jury returned verdicts of guilty on the first and third counts, and a verdict of not guilty on the second count. On 15 December 1998 the appellant was sentenced on each of the first and third counts to a minimum of 3 years imprisonment, to commence on 28 January 1998 and to expire on 27 January 2001, with an additional term of 1 year, to commence on 28 January 2001 and to expire on 27 January 2002.
This Court has been provided with a lengthy explanation of the delays which have been occasioned, through no fault of the administration of the Court, in the progression of the appeal in this matter. It is sufficient to say that difficulties have arisen with regard to the appellant’s legal representation, and nothing can be achieved by a recitation of the full detail of the reasons for the delay. The appellant was duly released to parole on 27 January 2001 and is presently at liberty. The appellant does not seek leave to appeal against sentence, in the event that his conviction…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Atroushi

Details

AGLC: R v Atroushi [2001] NSWCCA 406
Case: [2001] NSWCCA 406
Decision Date: 12 October 2001

CaseChat Overview and Summary

In the case of R v Atroushi, the appellant appealed against his conviction for stalking the complainant between 25 and 29 January 1998. The appeal focused on the admissibility of evidence pertaining to the relationship between the appellant and the complainant, which occurred prior to the alleged stalking incidents. The appellant argued that this prior relationship evidence was not relevant and should not have been admitted, as it could not rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding, specifically that the appellant stalked the complainant. The court had to decide whether the probative value of the relationship evidence was outweighed by the danger of unfair prejudice to the appellant.

The legal issues before the court were whether the relationship evidence was admissible under s 55 of the Evidence Act, and if so, whether the probative value of the evidence outweighed the potential for unfair prejudice to the appellant. The court considered the purpose of admitting relationship evidence, which is generally to provide context and assist the jury in understanding the significance of the charged offence. In this case, the relationship evidence had a specific function in that it related to an element of the offence, namely, the appellant's intention to cause the complainant to fear physical or mental harm. The court had to balance the probative value of the relationship evidence with the risk of unfair prejudice to the appellant.

The court found that the relationship evidence was admissible, as it was relevant to the appellant's state of mind and intention at the time of the alleged stalking. The court also found that the probative value of the evidence outweighed the potential for unfair prejudice to the appellant. The trial judge had given a clear direction to the jury that the relationship evidence could only be considered for the limited purpose of examining the appellant's state of mind on the critical dates, and not as evidence of a general criminal disposition. The court concluded that the trial judge had properly exercised his discretion in admitting the relationship evidence, and that the appellant's conviction should be upheld.

The final orders of the court were to dismiss the appeal and uphold the appellant's conviction for stalking the complainant between 25 and 29 January 1998. The court found that the trial judge had correctly admitted the relationship evidence, and that the appellant's conviction was supported by the evidence presented at trial. The court also noted that the appellant's argument that the relationship evidence was too remote in time was not persuasive, as the evidence was relevant to the appellant's state of mind and intention at the time of the alleged stalking.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The parties have conveniently agreed that the following is a summary (taken from the Crown’s submissions in writing to this Court) of the evidence (with transcript references) which was admitted pursuant to his Honour’s general ruling quoted above, and which is the subject of the first and second grounds of appeal: -“Complainant’s evidence Having admitted the above evidence, it was necessary for his Honour to give the jury a specific direction that such evidence was admitted for a limited purpose, and that it must not be used to show a general criminal disposition on the part of the appellant. In this respect, his Honour gave the following direction, to which no objection was taken at the trial: -“It may be convenient if I mention another legal direction now. We have had some relatively brief evidence as to events earlier than - whether it be January or April 1995 it is not important. I think the last incident was 3 January, but the actual order was 7 April. So evidence of what happened up to that point of time comes before you for a limited purpose only, and that is as to an examination of the state of mind of Mr Atroushi. If you accept that what he did was as is alleged in the Crown case you would need to consider what was going on in his mind, and in that consideration you are entitled to look back at the earlier events. If you accept them it could assist you in coming to a conclusion about his state of mind on 26, 27 and 28 January. But you are not entitled to use that material to, for example, say to yourselves that this man has a propensity to commit crime. That is not the approach at all. It is for that limited purpose of examining his state of mind. The only evidence directly against him in relation to these matters is of the events of the 26, 27 and 28 January.” Before this Court, counsel for the appellant, who was not counsel at the trial, argued in essence that the relationship evidence should have been rejected because it is not relevant within the meaning of s 55 of the Evidence Act as it could not rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding, ie that the appellant stalked the complainant between 25 and 29 January 1998. This is because it was too remote in time. Generally speaking, relationship evidence is admissible in order to place the evidence of the offence charged into a true and realistic context, 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: see e.g. R v MM (2000) 112 A Crim R 519 at 538. 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 likely to cause fear in the complainant. His Honour made this clear to the jury in the above quoted extract from the summing-up (brief as it was) by focusing their minds upon the need to consider what was going on in the appellant’s mind on the critical dates, and in that respect the jury were entitled to look back at the earlier events.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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