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

1. 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.

2. 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].

3. 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.

4. 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.

5. 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.

6. The Crown submits that this material is not based upon a direct account from the Offender and should not be admitted.

7. Also tendered on behalf of the Offender is a statement of Malvina Sweetman dated 4 November 2013 (a statement taken by police during the murder investigation). Ms Sweetman states that she occupied a unit at Croydon, in the same building as Monis and the Offender, who lived in an adjoining unit. She states that sometimes she “could hear the lady and the man through the adjoining wall when they were having an argument”. It was “quite loud” and this would happen “on average twice a week”.

8. In addition, there is tendered an affidavit from the Offender’s solicitor, Suzanne Knowles, sworn 30 November 2016. The affidavit annexes certain medical records which, it is argued for the Offender, corroborates in various forms the injuries said to have been experienced by the Offender arising from her interaction with Monis, as referred to in the affidavit of the Offender’s daughter.

9. The Crown has indicated that, if this other material was admitted, it does not wish to cross-examine the Offender’s daughter. However, it would seek to tender a statement of Detective Senior Constable Melanie Staples dated 30 November 2016. That statement recounts in summary form the many hours of conversation and activity recorded in one form or another (by way of surveillance device) in the residence or residences of Monis and the Offender over many months. It refers to some interaction between Monis and the Offender, which certainly points to controlling behaviour by Monis towards the Offender and her daughter. There is only one incident where police have noted what could be described as a physical altercation between Monis and the Offender, when there was an argument with a physical confrontation in which the Offender was heard to scream and a loud slapping sound was heard. According to the statement of Detective Senior Constable Staples, it is believed that the Offender's daughter was present at that time.

10. The question is whether this material should be admitted into evidence in the sentencing hearing. It will be immediately apparent that there is no statement or affidavit of the Offender tendered on sentence. It is not the case (as the Crown submitted) that this is analogous to the tender of a report of a psychologist or a psychiatrist which contains the Offender's account. In that scenario, courts have been critical of the fact that the account of the Offender is sought to be placed into evidence through another source, and thus cannot be tested: R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 at 377 [58]-[59], 390 [79]; R v Palu [2002] NSWCCA 381; 134 A Crim R 174 at 184-185 [40]-[41]. Here, the source is an eyewitness to the incidents, that is the daughter of the Offender.

11. It seems to me, prima facie, that this material is relevant to at least some issues on sentence. However, a fundamental question will arise as to the use which can be made of it in the absence of any evidence or account from the Offender herself.

12. I am not, in this judgment, attempting to describe exhaustively how this material may bear on sentence. It is clear that the bare description of the incidents over a period of time, as given by the daughter, is factual material capable of shedding some light upon the relationship between Monis and the Offender. Indeed, the statement of Detective Senior Constable Staples (based on the electronic evidence) performs a similar role; likewise the statement of Malvina Sweetman.

13. The material is prima facie admissible. What use can be made of it is another matter. If it is said that the material reveals a state of affairs that existed up to the time of Monis’ death in December 2014 and which has, in some way, evaporated since his death, then there is simply no evidence of that.

14. What the beliefs are of the Offender now, two years after Monis’ death, is not the subject of any evidence. The fact that the Offender had a highly unusual relationship with Monis over a period of years is beyond doubt, and was the subject of comment in my judgment of 3 November 2016. The fact that, in a number of respects, Monis appeared to be a controlling personality was manifest in aspects of the Crown evidence in the trial.

15. What is sought to be done now is to add a further dimension - that there was a level of physical and emotional abuse by Monis towards the Offender over a period of time.

16. The real question is how this material bears on the issues which I have to consider on sentence. It should not be taken that this material (if admitted) will lead directly to the position that the Offender’s circumstances have dramatically altered since December 2014 so that for the purpose of specific deterrence, protection of the community and other factors relevant to sentence, the Court should find a permanently changed set of circumstances.

17. What this material does is to shed some further light on the dynamics of the highly unusual relationship between Monis and the Offender. What it has to do with the fact that she carried out a terrible murder at his request, and a murder which operated to the benefit of the Offender and Monis, remains for consideration.

18. In the result, for these reasons, I propose to admit the various items of evidence which have been tendered and mentioned in this judgment. I make clear that the use that will be made of this evidence will be subject to the solid caveat that there is no sworn or other account of the Offender which points, directly or indirectly, to the relevance of this material to the offence itself or to sentence.

[His Honour noted that, in light of this ruling, it was not necessary to determine, for the purpose of s.4 Evidence Act 1995, whether the rules of evidence applied to these sentencing proceedings - T14-15, 30 November 2016]

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Decision last updated: 12 December 2016