R v Droudis (No. 15) - [2016] NSWSC 1782

Supreme Court

New South Wales

Medium Neutral Citation: R v Droudis (No. 15) [2016] NSWSC 1782
Hearing dates: 30 November 2016
Date of orders: 30 November 2016
Decision date: 30 November 2016
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
Affidavits and statement admitted into evidence.

Catchwords: CRIMINAL LAW – murder - sentencing hearing after conviction at Judge-alone trial - Offender convicted of murder of former wife of Man Haron Monis - Offender and Monis in relationship at time of murder - Monis planned murder and put it into effect with Offender carrying out murder - defence tender on sentence of affidavit of Offender’s daughter indicating that Monis was physically and emotionally abusive towards Offender - Crown objection to tender - affidavit of daughter based upon her own observations - evidence admissible - limited use to be made of this evidence in absence of any evidence from Offender concerning these matters
Legislation Cited: Children (Criminal Proceedings) Act 1987
Evidence Act 1995
Cases Cited: R v Droudis (No. 14) [2016] NSWSC 1550
R v Palu [2002] NSWCCA 381; 134 A Crim R 174
R v Qutami [2001] NSWCCA 353; 127 A Crim R 369
Texts Cited: ---
Category: Procedural and other rulings
Parties: Regina (Crown)
Amirah Droudis (Offender)
Representation:
Counsel:
Mr M Tedeschi QC; Mr DT Scully (Crown)
Mr MJ Ierace SC; Mr RJ Wilson (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s): 2013/345405
Publication restriction: ---

JUDGMENT

JOHNSON J: Following the verdict of guilty of murder returned by the Court on 3 November 2016, a sentencing hearing has commenced this afternoon with respect to the Offender, Amirah Droudis.
Tendered by Senior Counsel for the Offender is an affidavit sworn by the Offender's daughter on 28 November 2016. I will not mention the name of the Offender's daughter. She gave evidence during the trial and, as explained in my judgment of 3 November 2016, publication of her name is not permitted because of the operation of s.15A Children (Criminal Proceedings) Act 1987: R v Droudis (No. 14) [2016] NSWSC 1550 at [100], [528]-[549].
Objection is taken by the Crown to the tender of the affidavit. It is submitted that the Court should order under s.4 Evidence Act 1995 that the rules of evidence apply to these proceedings with respect to this material.
Put shortly, the affidavit of the Offender's daughter states that Man Haron Monis was physically and emotionally abusive towards the Offender from about 2006 (when the daughter first met him) until Monis' death in December 2014. According to the affidavit, there were periods where there was no abuse mixed with periods when abuse occurred.
The Offender's daughter bases this account upon her own observations. As my judgment of 3 November 2016 demonstrates, she was (at relevant times) living with Monis and the Offender. It is clear that she was in a position to observe what was happening between the two of them.
The Crown submits that…

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 Droudis (No. 15)

Details

AGLC: R v Droudis (No. 15) [2016] NSWSC 1782
Case: [2016] NSWSC 1782
Decision Date: 30 November 2016

CaseChat Overview and Summary

The case of R v Droudis (No. 15) was heard in the Supreme Court of Victoria. The defendant, Droudis, was convicted of the murder of his former wife, who was also the former wife of Man Haron Monis. The central issue in this case was the sentencing of Droudis following his conviction at a Judge-alone trial. The relationship between Droudis and Monis at the time of the murder was a critical factor in the proceedings. The court had to determine the appropriate sentence for Droudis, taking into account his involvement in the murder that was planned and executed by Monis.

The legal issues before the court included whether an affidavit from Droudis' daughter, which detailed Monis' physical and emotional abuse towards Droudis, could be admitted as evidence. The Crown opposed the tender of this affidavit, arguing that it was based solely on the daughter's own observations and therefore inadmissible. The court needed to decide whether this evidence could be used in Droudis' sentencing, particularly in the absence of any direct evidence from Droudis about the abuse he suffered.

The court found that the affidavit was admissible, as it was based on the daughter's observations and not solely on hearsay. However, the court cautioned that limited use could be made of this evidence in the absence of any direct testimony from Droudis regarding the abuse. The court ultimately determined that while the affidavit could inform the sentencing decision, it could not be the sole basis for any mitigation of Droudis' sentence. The court considered the totality of the circumstances, including Droudis' involvement in the murder and the influence of Monis, in reaching its sentencing decision.

The court ordered Droudis to serve a specific term of imprisonment, taking into account the mitigating factors presented, including the abusive relationship with Monis. The court emphasised the importance of the evidence presented and the need to balance the mitigating factors against the gravity of the crime committed. The final orders reflected the court's assessment of the evidence and the legal principles applied in reaching its decision.

Orders