R v FAS

[2007] NSWDC 257

CITATION:	R v FAS [2007] NSWDC 257
HEARING DATE(S):	29/10/07 - 5/11/07; 30/11/07
JUDGMENT DATE:	30 November 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Knox SC DCJ
DECISION:	a) I have limited the questions which may be asked in cross-examination on the Basha inquiry to new matters relating to Mr PS’s additional statement and matters going to the complainant’s dealings with the Department of Immigration;; b) I have not permitted cross-examination on matters going to credit on the voir dire;; c) The Crown may lead evidence that the complainant had an abortion;; d) The Crown may not lead evidence that the accused had anal sex with the complainant;; e) The Crown may not lead evidence as set out in the Tendency notice;; f) The Crown may not lead evidence as set out in the Coincidence notice;; g) Submissions on the directions to be given to the jury on the elements of the offences in the indictment should be made prior to the end of the Crown case;; h) The Crown may lead evidence in the form of a schedule of payments said to have been made by the accused to his family in Egypt out of the earnings of the complainant on the basis that the primary documents have been made available to the defence;; i) The Crown may lead evidence in the form of an LTO record of the purchase of the Lakemba unit said to be purchased in the accused’s name using monies provided by the complainant from her earnings in the brothel. In the event that defence counsel wishes to adduce evidence as to the interest if any that the complainant had in that unit then I will hear submissions as to the nature of any direction to be given to the jury and the evidentiary and legal basis for the direction sought;; j) The ERISP conducted with the accused should be edited in accordance with the amendments the subject of the rulings made;; k) Given the objections taken during the voir dire, I direct the Crown to prepare a list of the matters on which evidence will be led for the purposes of section 37 of the Evidence Act and for counsel to discuss that prior to the trial. Those amendments are to include the deletions consistent with this ruling;
CATCHWORDS:	Voir Dire - Basha Inquiry - Tendency-Coincidence Notices
LEGISLATION CITED:	Evidence Act 1995 Migration Act 1958 Crimes Act 1900
CASES CITED:	R v Sandford (March, 1994 unrep NSW CCA) Regina v Basha (1989) 39 A Crim R 337 at 339 Ibrahim v Pham [2004] NSWSC 650 Tully v The Queen (2006) 167 A Crim R 192 R v Gipp (1998) 1994 CLR 106 KRM v The Queen (2001) 206 CLR 221 Pfennig [1994-1995] 182 CLR 461 Ellis [2003] NSWCCA 319
PARTIES:	R FAS
FILE NUMBER(S):	06/11/1035
COUNSEL:	Crown: Mr B. Rowe Defence: Mr J Fliece
SOLICITORS:	Crown: Ms M. Noonan Defence: Ms C. Lee

- 1 -

JUDGMENT

A non-publication order has been made in relation to the name of the complainant. A similar order has been made in relation to the name of the accused - given that the evidence will necessarily canvass the fact that the complainant was married to the accused - for the purposes of the voir dire.

Issues

1 The issues on which rulings and directions are sought are as follows:

(a) whether the Crown should be able to lead evidence that the complainant had an abortion;

(b) whether the Crown should be able to lead evidence that the accused attempted to have anal sex with the complainant;

(c) whether the Crown should be able to lead evidence set out in the Tendency and Coincidence Notices relied on by the Crown;

(d) what questions may be asked on the voir dire going to the credit of witnesses;

(e) what questions may be asked in cross-examination on the Basha inquiry involving the evidence of Mr PS;

(f) the directions to be given to the jury on the elements of the offences charged, in particular, the meaning of the term ‘procure’ and ‘sexual servitude’ and whether that connotes any element of voluntariness or ongoing consent;

(g) the form of evidence to be tendered, in particular, the evidence of the complainant and a schedule of payments said to have been made by the accused to his family in Egypt out of the earnings of the complainant.

Indictment

2 The accused is charged with counts on an indictment as follows:

Count 1

Between about 14 August 2000 and about 30 September 2000 at Banksia, in the State of New South Wales, did, by threat, procure SI for the purposes of prostitution.

In the Alternative

Count 2

Between about 14 August 2000 and about 30 September 2000 at Banksia, in the State of New South Wales, did procure SI, a person who was not a prostitute, for the purposes of prostitution.

Count 3

Between about 22 March 2002 and about 30 July 2002 at Banksia, in the State of New South Wales, did cause SI to remain in sexual servitude, and the said FAS intended to cause, or was reckless as to causing, that sexual servitude.

Evidence on voir dire/Basha inquiry

3 Evidence has been led from:

Dr Bishara, the complainant’s then medical practitioner;
Mr PS the current husband of the complainant. A Basha inquiry was conducted in relation to aspects of his proposed evidence. A late statement had been obtained by the Crown as to matters in dispute;
Ms Kretsis, the receptionist at the brothel where the complainant worked;
Ms Bev Flowers, the owner of the brothel where the complainant worked.
The complainant, Ms SI;
A file of statements was tendered – without objection for the purposes of the voir dire.

Procedure to be followed : voir dire

4 Counsel for the accused has sought to cross-examine on matters in these proceedings which are designed to attack the credit of the witnesses. No authority to support that approach was referred to. Absent authority to the contrary, in my view that is to misconceive the nature of the proceedings. The purpose of a voir dire is to determine disputed preliminary facts, ie., those facts which must be established as a condition precedent to the admission of certain items of evidence.

5 Questions going to credit are matters essentially for the jury. The issue of the truth of the statement is not directly relevant on the voir dire – although it may be crucial to the jury if the evidence is admitted. The position was in my view properly described by the learned authors of Cross on Evidence 7th Aust ed at [11050] – [11055] where trials within a trial are described as ‘time-wasting in cases tried before a jury’. Once the judge has determined that the evidence is admissible – for example, that a confession is freely and properly given – then the evidence is left to the jury. Questions of credit are matters going to the assessment of the evidence by the tribunal of fact including the weight to be given to that evidence.

Procedure to be followed : Basha inquiry

6 In R v Sandford 7 March, 1994 unrep NSW CCA Hunt CJ at CL referred to Regina v Basha (1989) 39 A Crim R 337 at 339 and the procedure to be followed and the distinction between a Basha inquiry and a voir dire. His Honour said that an accused is not entitled to try out the questions at the trial in the absence of the jury so as to avoid the embarrassment of unsuccessfully raising an issue in the presence of the jury.

7 The judge needs to be satisfied that there is at least a serious risk of an unfair trial if the accused is not given the opportunity to do what otherwise would have been done at the committal proceedings, that the procedure is not used inappropriately in order to try out risky questions which may otherwise prove to be embarrassing in the presence of the jury, and provided also that such an examination is not permitted to interrupt the trial itself significantly:

8 Hunt CJ at CL also stated that the onus lies upon the accused in such cases to demonstrate that the disadvantage or prejudice which he would otherwise suffer during the course of the trial is in a relevant sense unacceptable, to the extent that the trial would be unfair: Regina v Basha (at 338).

Questions on credit on the voir dire in relation to evidence led on in support of the Tendency and Coincidence Notices.

9 As indicated earlier, Mr Fliece has indicated that he intends to cross-examine on the voir dire on questions of credit of the complainant. He submits that he has not had the opportunity to test that evidence ahead of the trial, in particular, to cross-examine the complainant to clarify what she is going to say at the trial and to remove any ambiguity ahead of the trial.

10 In my view, that is not the purpose of a voir dire. The inquiry should be limited to ascertaining whether there is cogent admissible evidence which can support the tendency alleged. Here I have already indicated my view that on the evidence I have heard to date, the Crown evidence may not support all the details of the Tendency notice in some respects.

11 If that is the case and then to determine in accordance with the balancing exercise called for under section 101 of the Evidence Act whether the probative value of the evidence substantially outweighs any prejudicial effect of the evidence on the accused or there are other discretionary matters relevant under section 138.

Background - accused

12 The Crown case is that the accused came to Australia in 1997 from Egypt. He became an Australian citizen in 1999. He returned to Egypt in 2000 and married the complainant, Ms SI, in a pre-arranged marriage according to Islamic law in February, 2000. They did not know each other prior to the marriage.

13 The accused returned to Australia in March 2000. He has remarried an Egyptian woman, Ms ES, in October, 2003. She came to Australia on 2 November, 2004.

Complainant

14 At that stage the complainant, Ms SI, who was born on 13 January 1980 was aged 20. She was brought up in a conservative family and assisted her father in his clothing store. She had apparently just finished school and a technical school when she was married. She had never travelled outside of Egypt before. She arrived in Australia on 29 July 2000. Ms SI did not speak or read English and had no family, friends, or other contacts in Australia. She knew no-one else in Sydney.

15 Ms SI’s evidence was that under Islamic law and Egyptian mores, a wife had to do what she was told by her husband. That is disputed by the accused. The complainant also said that the accused told her that she had to work to pay back her visa and that it was important that she worked so that they could buy a house or unit.

16 The Crown case is that, shortly after Ms SI’s arrival, the accused took her to the Centrelink offices. He also opened an account for her when she arrived (ERISP Q/A 234). Initially it was a joint account, then he separated the account into two accounts (Q/A 236). Ms SI did not have an access card to the accounts.

Complainant: commencement of work at the brothel

17 After a further short period of time (2 weeks) the complainant said that the accused took her to premises at the Hideaway Brothel in the Princes Highway at Banksia. The Crown case will be that the accused was a prior client of the brothel and that he contacted the receptionist or management at the brothel to arrange to bring someone to work there. Evidence will be led of credit card payments being made by the accused to the holding company for the brothel’s then owner.

18 Ms SI’s evidence was that she did not know what she was going to the premises for – either in what capacity she would be there or what services she would be performing. Based on what the accused had said to her, she initially thought she would be carrying out massage only.

19 At the brothel, the accused is said to have introduced her to some people, identified by their given names. The staff and other workers, in turn, instructed her in what she was to do with the clients of the brothel.

20 Ms SI commenced working at the brothel on 14 August 2000, ie., about 2 weeks after her arrival in Australia. There seems to be no issue that shortly thereafter she worked as a prostitute and that she did so for a period of just under two years.

21 On the Crown case the complainant was actually living in the brothel for some periods for up to 6 days per week. Further, that the accused used to meet her after work or on some occasions come to the brothel and take her earnings which she kept in an envelope and gave to him. Further, he used to telephone her frequently and question her, and when she had her phone turned off, used to also call the receptionists at the brothel. He used to collect her after work. On weekends when she would go home with him.

22 One of the Crown witnesses, the receptionist of the brothel, Ms Kretsis, will give evidence that she observed the accused taking an envelope of cash previously given to the complainant as her earnings from her and questioning her; moreover, that he stopped the complainant from moving freely, for example, down the street or to do her own shopping.

Crown case

23 In summary, the Crown case is that the evidence establishes that:

o the complainant was a young woman, then 20,

o who had no or extremely limited English,

o who had no family, friends or contacts in Australia,

o who had never worked in a brothel or as a sex worker

o who was taken to the Hideaway brothel within two or three weeks of her arrival in Australia

o accompanied by her newly married husband;

o who was a person who, by virtue of Egyptian law and the mores of her upbringing, she was bound to obey;

o who was a man who had lived and worked in Australia for some time;

o who had been a client of the brothel and who had contacted the brothel staff prior to bringing the complainant to the brothel;

o where she was directed to work in accordance with the directions of other staff.

24 Moreover, that the accused took all her earnings from her and remitted a substantial proportion of those monies overseas to members of his family or extended family. The Crown case is that the totality of these circumstances constituted a procurement of the complainant by the accused for the purposes of prostitution.

Fear/threats

25 The evidence of Ms Kretsis was that the complainant seemed scared and apprehensive, from Mr PS, at that time a client, that she was depressed, ‘there was something wrong with her’ and that she was isolated. Mr PS observed her with cuts and scratches, which on the Crown case, came from a violent incident when the accused assaulted her when she came home from the brothel on one occasion unexpectedly. Mr PS at that time gave her his phone number.

26 The accused is a man of relatively substantial build. He is 12 years older than the complainant.

27 On the Crown case the complainant was fearful of her husband for the following reasons: -

a) The accused’s threats of violence towards her. There is an issue as to whether that predated or post-dated the complainant being taken to the brothel;

b) The accused’s actual violence towards her, including his request/desire to have anal sex with her within 2 weeks of her having had an abortion;

c) The complainant’s background as an Egyptian woman of her age, relatively limited life experience, extremely limited English and being a person with no contacts or resources in Australia. On the Crown case, she was required to do what she was directed to by her husband both by Islamic law and the mores of her upbringing and culture;

d) The accused’s control over her was demonstrated by the fact that the complainant had an abortion at his insistence and against her wishes;

e) The fact that the complainant had nowhere else to go or to live or persons to contact;

f) The accused had kept her passport and medicare cards;

g) The accused had opened accounts in his name and their joint names which he operated and from which some of the monies were transferred to Egypt to members of the accused’s family. The complainant did not have an ATM card or equivalent.

Parties’ relationship

28 The Crown case is that the accused divorced the complainant in accordance with the principles of Islamic law stating that he intended to, or did, divorce her three times. It appears that the parties then went to see an Imam known as Sheikh Hilali at the mosque. Thereafter, they reconciled.

29 Shortly afterwards the accused withdrew his sponsorship of her. That occurred on 19 November 2001 (Q/A 328). At that stage she was still in Australia, on the Crown case working in the brothel (Q/A 348).

Defence case

30 The defence case is that Ms SI worked in the brothel but that was her wish. Further, that that work was a continuation of the work she had done or was familiar with in Egypt. Ms SI had come to Australia without any skills or qualifications and had earnt substantial sums over that two year period (about $200000). The accused denies that he took any monies from her.

31 The defence case will be that the complainant was free to leave the brothel at any time. The fact that she didn’t feel fear in Australia was evidenced by the fact that she returned to Sydney after being taken to Egypt by the accused. Further, that the brothel owners/ managers/ receptionists allowed her to continue working there which of itself was inconsistent with the fact that she was and continued to be unhappy.

32 The Defence further submits that the complainant’s first complaint about domestic violence was after she had returned to Australia (6 August, 2002); further, that that was part of a scheme or arrangement by her to ensure that she could stay in Australia, to refute any suggestion that she would breach the character test provisions relevant to Migration Act determinations by virtue of her work as a prostitute in a brothel. Her claim of being kept in sexual servitude was one availed of by her to give a justification and defence for any claim that she was earning untaxed income and receiving social security during the period she was working at the brothel.

Parties’ return to Egypt

33 The parties went overseas on 31 July, 2002, firstly to Malaysia, and then onto Egypt. In the ERISP conducted on 15 April 2006, the accused said that he had no idea that his wife was going to be on the same plane as he was. The Crown case is that the accused bought the tickets for himself and the complainant. The accused in the ERISP said that she must have bought them herself.

34 The Crown case is that Ms SI thought she was going on a holiday to Malaysia. She didn’t know where that was, in particular, whether it was part of Australia. She discovered when the trip was broken in Kuala Lumpur, that she was going on to Egypt. He then told during the trip that he was proposing to separate from her and that she would be left without any monies.

35 When she arrived in Egypt at the airport, the accused said that she had to find her own way home. She then went to her own family. There was a meeting between the accused and Ms SI and her family during which the accused said that he was going to ‘have her convicted’ for taking money from him. Apparently proceedings were taken by him subsequently as a result of which the complainant was convicted in her absence.

36 While Ms SI was in Kuala Lumpur on a stopover on the way back to Egypt, she contacted Mr PS. She then contacted the Australian Embassy who informed her that she could return to Australia on her then visa which she did.

37 On Ms SI’s return to Australia, Mr PS met her and arranged for her accommodation. He also arranged for her to see an immigration agent, Mr Alexandroeu. Ms SI never returned to work or have any association with the brothel. She initially worked in Mr PS’s bakery and then went to TAFE. Ultimately she and Mr PS commenced a relationship and were married in 2005. They remain married.

Evidence: Monies

38 The Crown evidence from the complainant and the receptionist/manager of the brothel was that at the end of each day she would be given an envelope with cash monies in it. There was further evidence that the accused would often wait for her after her work and take the envelope from her.

39 The complainant said that she never received any money which she retained for herself while working at the brothel. The evidence of the receptionist of the brothel was that Ms SI always came to work in the same clothes.

40 The estimate of the brothel receptionist, Ms Kretsis, was that the complainant would have earned about $200,000 while working at the brothel. There were apparently no wages records or employment sheets/pay slips maintained by the brothel after a 12 month period.

41 On the Crown case the complainant was involved in at least two significant kinds of transactions which indicated the receipt of monies from the complainant as a direct result of her working as a prostitute.

42 Those were:

a) The purchase of a flat by him for $132,000 (Q/A 348). At that time the accused was working as a steward at the Hilton Hotel; He stopped working in 2001 due to a back injury. The accused was thereafter on a Centrelink pension of $850 per fortnight.

b) The transfer of monies by him to Egypt to members of his family. The accused says those were his own monies (Q/A 357).

The accused said the money remitted was money he saved and what he received from the sale of the unit (Q/A 361) or was from his own work (Q/A 361).

A schedule of those amounts has been prepared by the Crown from the primary documents. The Crown seeks to put that summary before the jury pursuant to section 50 of the Evidence Act.

Elements

43 There are a number of issues in relation to many of the elements of the counts charged no the material before me. These include:

‘Procure’.

44 The Crown case is that the accused took the complainant to the brothel, by prior arrangement with the receptionist and management. They knew him as an earlier client of the brothel. Evidence will be given that he made payments to the holding company for the brothel through his visa card. He is said to have introduced Ms SI to the receptionist who thereafter took her inside to a room and showed her what to do and outfitted her with clothes.

45 The Crown case is also that the accused had a conversation with the complainant there as to what she was to do, whose directions she was to follow and what she was to do. The Crown case is that the complainant did that thereafter, against her will, including having sex with three or four clients on the first day she was at the brothel.

46 That evidence was denied by the accused who said in his ERISP that he did not take the complainant to ‘such places’ (Q/A 244); moreover, that he had never been there (Q/A 245). Subsequently he went there ‘because he wanted to talk to her’ (Q/A 248).

Servitude

47 The Crown case is that the complainant effectively lived at the brothel for six days a week for up to two years. All her earnings were taken from her each evening after work by the accused. She had no contacts or other resources. All her financial affairs were managed by her husband.

48 On the Crown case, there are some different accounts as to Ms SI’s state when she was at the brothel. Ms Flowers, the owner of the brothel, said that the complainant appeared to be happy and content for so long as she remained working there. Ms Flowers also said that she didn’t have a great deal to do with the girls working there. Her sister, Ms Kretsis, who also worked there from time to time as a receptionist, said that the complainant was timid and teary and she did not like working there and did so at the insistence of her husband. She ascertained this from her conversations with the complainant once the complainant started to learn to speak English. Evidence to like effect is said to come from another receptionist, Ms Lyn Cappella.

49 The accused disputed Ms Kretsis’ account or that Ms SI was working there at his threat or direction or that she was unwilling to be there. Moreover, his case is that what the complainant was involved in was a continuation of her past practices in Egypt, and that she was free to leave the premises she worked in voluntarily at any time. In effect the accused’s case is that the complainant was already involved in activities of, or consistent with, prostitution in Egypt and that she was prepared to and did, continue that in Sydney.

50 The accused further denies that he took anything from her (Q/A 279) that she gave him her earnings (Q/A 380) or that he had physically assaulted her (Q/A 281).

Ms SI’s doctor

51 There is a statement by the complainant’s then general practitioner, Dr Susan Bishara, who worked as a general practitioner in Punchbowl. She says that she saw Mrs SI from September 2000 on a number of occasions. Dr Bishara was an Arabic speaking doctor who had trained in Egypt among other places.

52 Dr Bishara wrote a letter to the Department of Immigration on 12 August 2002 stating that the complainant was pregnant in October 2000 and “her husband insisted to terminate the pregnancy against her will.” A subsequent statement of Dr Bishara and her evidence was to the effect that that statement would have reflected what she was told at that time.

Relevance of evidence as to abortion/anal sex

53 The Crown case is that the accused exercised a continuing control over the complainant which was demonstrated by the evidence that she had an abortion at his insistence and that he demanded that he have anal sex with her shortly after she had had an abortion. Further, that those incidents should be viewed against the allegations that there were the continuing threats and incidents of violence in the context where the complainant was a young woman without language skills or contacts in Australia who says that she was obliged to obey her husband. It is submitted that these acts indicated her continuing compliance with his wishes.

54 Both aspects of the evidence and the basis for the submissions are denied by the accused (Q/A 293). The defence submits that that evidence is not relevant to the matters in issue.

Tendency/Coincidence Notices

55 Tendency and Coincidence Notices have been served by the Crown. The statements are relied on in support of the tendency notice are those of :-

i. Ms SI;

ii. Ms Kretsis;

iii. Mr PS dated 26 October 2007

Matters arising from evidence on the voir dire

56 In January, 2005, Ms Kretsis, the receptionist at the brothel, asked Ms SI to come to the brothel to talk to, and assist, a young Arabic/Egyptian speaking woman, who was working at the brothel on that night. That woman was subsequently identified by Ms SI, Ms Kretsis and Mr PS as Ms ES, the accused’s second wife. Ms ES had at that stage been in Australia about two months.

57 Ms Kretsis who was a receptionist at the Hideaway Brothel, says that on a Saturday night in January 2000 a woman came to work at the Hideaway Brothel. She could not speak any English. She was present when Ms SI spoke to her in either Egyptian or Arabic. Thereafter, the woman continued to work an evening shift at the brothel.

58 Ms Kretsis also identified the woman as being at the Sutherland Local Court with the accused and a child. Ms Kretsis was present when the woman gave evidence and told the Court that she was the accused’s wife.

59 Ms SI confirmed that Ms Kretsis called her some time later and asked her to come back to the brothel to talk to a young woman who was there to work with whom they were having communication difficulties. Ms SI spoke to the woman at the brothel for some time. Ms SI also identified the woman as being the same person who was at the Sutherland Court in circumstances which established that that woman was the then wife of the accused. Those statements needed to be considered with the additional statement of Ms Kretsis of 24 June 2005.

60 Mr PS is now married to the complainant. Mr PS says that he went to the brothel with Ms SI when she spoke to the woman. He confirmed the account given by Ms SI of Ms SI and Ms ES speaking at the brothel for a period of time.

61 Further, that he identified the woman as the same woman who was at the Sutherland Court with the accused and who was identified as ES.

Cogency of evidence relied on to support Tendency and Coincidence Notices

62 In terms of the other matters relevant to my discretion as to the nature and effect of the evidence, the evidence seems to be cogent and consistent, not only as between the witnesses as to the place and premises involved but in terms of the contents or effect of the conversations and behaviour observed and the overall chronology.

63 The identification evidence of Ms ES as being the person at the brothel and at the Sutherland Local Court is both cogent and consistent among the three witnesses, Ms SI, Ms Kretsis and Mr PS. The incontrovertible evidence of the date of the Local Court proceedings and the date of the arrival in Australia of Ms ES, also clarifies what issues there are as to when the various acts of identification took place.

64 However, the evidence is disputed and relates to one incident where Ms ES worked in the brothel – see Ibrahim v Pham [2004] NSWSC 650 at [31]. The accused through his counsel denies that he took his second wife to those premises.

Reliance on evidence

65 The tendency relied on is the tendency of the accused said to be to send young, Egyptian wives newly arrived in Australia and speaking little or no English to work at the Hideaway Brothel at 311 Princess Highway Banksia in circumstances where they had little or no understanding of what they would have to do at the brothel.

66 The Coincidence Notice is to similar effect but alleging a particular act, namely, that the accused sent his young Egyptian wives, who were newly arrived in Australia and who spoke little English, to the Hideaway brothel to work as prostitutes, knowing they did not wish to work as a prostitute, were scared with little understanding of what they had to do at the brothel and under threat that if they did not work at the brothel they would be unable to stay in Australia.

Does the evidence support the tendency and coincidence alleged?

67 In my view, the evidence supports the coincidence that the wives of the accused

o who had each newly arrived in Australia from Egypt;

o who were each young – about the age of 20;

o who were of Muslim background with little or no understanding of English;

o worked in an escort agency in providing sexual services;

o with which they were each unfamiliar;

o that that work was a matter of concern to them.

Evidence admissible against the accused

68 However, there is no other or admissible evidence that it was the accused who sent or arranged for her to go to work in the brothel or that she perform that work. The police were unable to obtain a statement from Ms ES. There is no evidence connecting the accused to the second wife’s presence at the brothel.

69 In cross-examination on the voir dire, the complainant said that the woman told her that her husband ‘put her there’. However, that is clearly hearsay evidence and is not admissible against the accused.

Relevance: Meaning of ‘Procure’ and ‘sexual servitude’

70 To be admissible, the evidence sought to be admitted would need to go to the issue of whether the accused ‘procured’ the complainant to become involved in prostitution and to the issue of whether he caused her to remain in a state of ‘sexual servitude’.

71 Procure has its ordinary meaning and can include the meaning of to recruit, or bring about a result or to obtain or achieve a purpose by effort, or the use of special means. It can also have the meaning of arrange or doing something active to cause the person the subject of the complaint to pursue the activity the subject of the charge, here to be in a position of sexual servitude.

72 The term is used in the Crimes Act in other sections – for example, to procure a miscarriage (sections 82/83) or procure a drug (section 84) with the meaning of to bring about a result.

73 Sexual servitude is the condition of a person who provides sexual services and who, because of the use of force or threats:

(a) is not free to cease providing sexual services, or
(b) is not free to leave the place or area where the person provides sexual services.

74 Sexual service means the commercial use or display of the body of the person providing the service for the sexual arousal or sexual gratification of others.

Consideration

Evidence

75 The evidence of the abortion is clear and uncontradicted. Both the evidence of the complainant and Dr Bishara is similar, consistent and corroborative of the circumstances of the abortion. The medical certificate from Dr Skalecky makes it clear that the abortion took place. It also occurred at the point in time that it did in terms of the parties’ marriage and the complainant’s arrival in Australia.

76 While there is an issue as to whether Dr Bishara’s letter was written at the prompting of the complainant at a later time, Dr Bishara’s evidence was clear as to what she observed of the complainant’s attitude and what was told in 2000 rather than what she was told in 2002.

77 The clear evidence of Ms SI is that she had the abortion against her wishes and at the repeated insistence of her husband. That insistence continued at the time the complainant was working at the brothel and in the context that the accused made continual references to the need for money for them to obtain a home and to repay monies for the visa enabling the complainant to remain in Australia.

Probative value

78 The evidence of the relationship and the nature and manifestations of the relationship (including whether the complainant was compliant with the wishes and desires of the accused and effectively totally reliant on him at that stage) seem to me to be relevant to the issues of whether the accused ‘procured’ the complainant to be involved in prostitution.

79 I do not consider that the evidence of the abortion goes to the element of ‘sexual servitude’ in terms of ongoing threats nor, as the Crown submits that it demonstrates an ‘almost captive situation’. However, the ongoing threats and violence including the acts of the accused in striking, beating and spitting on the complainant, seem to be clearly relevant to the element of the servitude alleged.

Prejudicial effect

80 Mr Fliece submits that, although abortion is a legal procedure in Australia, the subject of abortion is so innately controversial and emotive that no directions to the jury could eliminate the inevitable prejudice there would be to the accused by this evidence being led. Further, that evidence in relation to a request or demand for anal intercourse is or may be inherently prejudicial.

81 The jury panel would be specifically instructed on the nature of the evidence to be led, the issues of abortion and other matters which they might find to be distasteful or abhorrent to ensure that they can each bring an objective, dispassionate and impartial mind to the consideration of the evidence.

82 Mr Fliece submits that, notwithstanding those directions, a considerable proportion of the jury panel is likely to be of a religious/values background to find the issue of abortion, and inferentially also the suggestion of desired anal intercourse, to be abhorrent and likely to inflame an otherwise reasonable juror to be unable to consider the evidence dispassionately.

Evidence as to relationship and a demand/request for anal sex

83 The evidence on the voir dire did not support the allegation that the demand for anal sex took place nor that it actually occurred.

84 The evidence going to the parties’ relationship is relevant in my view to the ascertainment of the state of compliance or otherwise of the complainant with the accused’s wishes firstly, as to going to work in the brothel and secondly, as to remaining in the brothel in what is submitted to be a position of sexual servitude.

85 The Crown case will clearly depend on inferences which the jury will be asked to draw based on the facts alleged as to the overall circumstances of the complainant, where and the circumstances under which she was located and the circumstances to which she was said to be subject.

Law

86 The relationship between the complainant and the accused is a central aspect of that situation as that has been referred to by Callinan J in Tully v The Queen (2006) 167 A Crim R 192 at 227/8; [2006] HCA 56. In that decision and R v Gipp (1998) 1994 CLR 106 and KRM v The Queen (2001) 206 CLR 221, the Court also referred to the care and scrutiny which must be exercised in relation to relationship evidence where it is relied on as essentially propensity evidence.

87 The issues of whether there was an abortion and a demand/request for anal sex are an aspect of the relationship and the compliance of the complainant with the demands and wishes of the accused at the time when she went to work at the brothel. In my view, the husband’s alleged control over the complainant and the allegations of violence to her may also be probative of the issue of servitude and whether the complainant was in that situation on an effectively involuntary basis.

88 The subjects of the abortion and the anal sex allegation are highly prejudicial. They may also be matters where a potential juror might be reluctant or embarrassed about coming forward to state that he or she has an issue with the nature of the case and the evidence to be raised. The test is whether the evidence constitutes a danger that the jury will use the evidence in a way unconnected with the issues in the case. The Crown submits that any potential misuse of the evidence would be cured by directions.

89 While the subjects of the abortion and the anal sex allegation are prejudicial - the issue is whether there is a danger of unfair prejudice by the admission of that material. In terms of the balancing exercise I am required to carry out pursuant to section 137 of the Evidence Act, in my view, the evidence is highly probative of the nature of the relationship and that value substantially outweighs its prejudicial effect.

90 Mr Fliece also submits that the evidence also relates to a later event to support a tendency of the accused at an earlier stage. That aspect has been dealt with in Pfennig [1994-1995] 182 CLR 461 and the wording of section 97 – that the person ‘has or had a tendency’.

Tendency evidence

91 I do not think that the evidence supports the tendency notices as drafted nor that the evidence supports the tendency alleged on behalf of the accused. The Crown submits that there is evidence from which a jury could be satisfied that each of them were working at the brothel pursuant to the arrangements of, and at the requirement of, the accused.

92 There seems to be no probative evidence of the conduct of the accused nor indeed, any tendency on the part of the accused to do anything, in particular, to place his wives in a brothel for work. All that can be relied on is effectively hearsay evidence in a foreign language as to what Ms SI heard Ms ES say as to why she was there in respect of a potential wish of her husband.

Coincidence

93 The evidence supports the coincidental facts alleged by the Crown that Ms ES and the complainant were both working in the brothel within a short period of time of their respective arrivals in Australia, at their similar ages and at the same times in their respective marriages to the accused, when they had little or virtually no English, nor had either of them other than little comprehension of what they were required to do or be.

94 However, there is no admissible evidence which supports the accused’s involvement in the matters involving Ms ES, in particular, that he was the one that procured her to be there or to work at the brothel.

Test

95 Section 98 of the Evidence Act refers to the evidence being admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act. Here the evidence in relation to the two or more acts relied on do not establish that the accused did the particular acts.

96 If I am wrong on that, I need to consider the prejudicial nature of the evidence and whether in these circumstances it should be admitted. Section 101 provides that such evidence cannot be used unless the probative value of the evidence substantially outweighs any prejudicial effect of the evidence on the accused – see also Ellis [2003] NSWCCA 319.

97 Here I think that there is real risk that the evidence may be misused and that a jury may automatically assume that the accused was the one that procured both women to work at the brothel in circumstances where there is no evidence that he did that in relation to the second wife.

Directions

Delay

98 Directions will be necessary on the delay which has occurred in the prosecution of the matter – particularly as to difficulties in recall where conversations and details of identification are concerned. The matter was brought to the attention of the police in 2003. The police revisited the matter in 2005. The accused was arrested on 15 April, 2006. The matter was committed for trial on 8 December, 2006.

Inferences

99 The jury will need to be instructed that they will need to be satisfied beyond reasonable doubt as to the primary facts from which inferences can be drawn and that the established facts being the only inferences available. I will require the Crown to specify in advance and prior to the end of the Crown case what inferences are sought to be drawn from the facts said to be established on the Crown case at that stage.

Circumstantial evidence

100 The Crown relies on the various circumstances specified earlier to establish that there was fear of the complainant of the accused and that it was that continuing situation of fear that meant that she remained working in the brothel in a situation of servitude. The Defence challenges that fear as existing at any time or relevantly in relation to either count, in the alternative that there were other reasons why the complainant was working in the brothel including the amount she was earning.

101 This evidence may be given and will be subject to the usual direction on the use of circumstantial evidence and the necessity for the primary facts to be established beyond reasonable doubt.

Elements

102 I have indicated that the jury should be given a written outline of the elements of the various counts on the indictment by the end of the Crown case. The first draft of those has been circulated to counsel. There are some issues and matters of interpretation associated with the meaning of the term ‘procure’ and ‘sexual servitude’ and whether the definition of that ‘condition’ that connotes any element of voluntariness or ongoing consent. In that regard there is a difference between counts 1 and 2 (the alternate count) in that section 91A which specifies that the ‘procurement’ can be with or without consent.

103 I will hear further submissions on that draft at the conclusion of the Crown evidence.

Ruling

a) I have limited the questions which may be asked in cross-examination on the Basha inquiry to new matters relating to Mr PS’s additional statement and matters going to the complainant’s dealings with the Department of Immigration;

b) I have not permitted cross-examination on matters going to credit on the voir dire;

c) The Crown may lead evidence that the complainant had an abortion.

d) The Crown may not lead evidence that the accused had anal sex with the complainant.

e) The Crown may not lead evidence as set out in the Tendency notice.

f) The Crown may not lead evidence as set out in the Coincidence notice

g) Submissions on the directions to be given to the jury on the elements of the offences in the indictment should be made prior to the end of the Crown case.

h) The Crown may lead evidence in the form of a schedule of payments said to have been made by the accused to his family in Egypt out of the earnings of the complainant on the basis that the primary documents have been made available to the defence.

i) The Crown may lead evidence in the form of an LTO record of the purchase of the Lakemba unit said to be purchased in the accused’s name using monies provided by the complainant from her earnings in the brothel. In the event that defence counsel wishes to adduce evidence as to the interest if any that the complainant had in that unit then I will hear submissions as to the nature of any direction to be given to the jury and the evidentiary and legal basis for the direction sought.

j) The ERISP conducted with the accused should be edited in accordance with the amendments the subject of the rulings made.

k) Given the objections taken during the voir dire, I direct the Crown to prepare a list of the matters on which evidence will be led for the purposes of section 37 of the Evidence Act and for counsel to discuss that prior to the trial. Those amendments are to include the deletions consistent with this ruling.