R v Azizi (No.2) - [2010] VSC 658

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1740 of 2008

THE CROWN

SOLTAN AZIZI

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JUDGE:	KING J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 – 20 January 2010
DATE OF RULING:	21 January 2010
CASE MAY BE CITED AS:	R v Azizi (No.2)
MEDIUM NEUTRAL CITATION:	[2010] VSC 658

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Rose SC.	Office of Public Prosecution
For the Accused	Mr S Langslow	Rob Stary & Associates

HER HONOUR:

The accused Soltan Azizi is charged with the murder of his wife Marzieh Rahimi. The accused admits that he strangled his wife but claims that he did not intend to kill or cause her really serious injury but was acting in self-defence, after being attacked by his wife.

The prosecution gave written notice pursuant to s 97(1)(a) of the Evidence Act 2008 of its intention to adduce tendency evidence under that section and pursuant to s 67 of the Evidence Act notice of its intention to lead hearsay evidence relating to the same matters being the hearsay evidence of Marzieh Rahimi.

Section 97 provides:

97 The tendency rule
(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 adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

The Act further relevantly states:
101Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(1)This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2)Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.

The s 97 notice in relation to this matter stated that the facts in issue to which the tendency evidence related was the state of mind of the accused person at the time of killing the deceased. Further, that the tendency evidence was to be led to demonstrate that, at the time of the killing of the deceased, the accused person had the intent to kill or cause really serious injury to the victim or knew that his acts would probably cause death or really serious injury to the victim.

The alleged tendency was stated in the s 97 notice as the accused’s tendency to:
(a)Act in a particular way, namely:
a tendency to inflict physical violence or act…

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 Azizi (No.2)

Details

AGLC: R v Azizi (No.2) [2010] VSC 658
Case: [2010] VSC 658
Decision Date: 21 January 2010

CaseChat Overview and Summary

The case of R v Azizi (No.2) before King J in the Supreme Court of Victoria involved the accused, Soltan Azizi, who admitted to strangling his wife Marzieh Rahimi but claimed self-defence. The prosecution sought to introduce tendency evidence under s 97(1)(a) of the Evidence Act 2008 to demonstrate the accused's intent to kill or cause serious injury, which the defence argued was not probative of the accused's state of mind at the time of the offence. The evidence comprised 16 instances of alleged violence and abuse over a period of years. The court considered whether the probative value of the evidence substantially outweighed any prejudicial effect.

King J held that the evidence was probative of the accused's tendency to violence and aggression towards the deceased, which could rebut the self-defence claim and demonstrate intent. The evidence showed a pattern of violent reactions to disputes, which could indicate an inability to control anger and violent overreactions to the deceased. The court found that the probative value of the evidence substantially outweighed any prejudicial effect. The evidence, when combined with the other evidence, could eliminate any reasonable doubt as to the accused's guilt. The court ruled the evidence was admissible.

The court made an order that the evidence sought to be led by the Crown as tendency evidence was admissible.

Orders