R v Gabriel

[2009] NSWSC 1211

CITATION:	R v Gabriel [2009] NSWSC 1211
HEARING DATE(S):	29-30 September 2009
JUDGMENT DATE :	2 October 2009
JUDGMENT OF:	Price J
CATCHWORDS:	Criminal Practice and Procedure - Evidence - charge of murder - previous representations of domestic violence not admitted.
LEGISLATION CITED:	Evidence Act 1995 s 55, s 65(2)(b), s 97(1), s 137
CATEGORY:	Procedural and other rulings
PARTIES:	Regina Harb Gabriel
FILE NUMBER(S):	SC 2008/20696
COUNSEL:	G Tabuteau (Crown) J Dailly SC (accused)
SOLICITORS:	C Pendlebury (DPP) D Eid (accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

2 October 2009

2008/20696 R v Gabriel

JUDGMENT

1 HIS HONOUR: The accused, Harb Gabriel, is charged with the murder of his wife Wadad Isber on the 28 January 2008. He has pleaded not guilty to murder but guilty to manslaughter. The Crown does not accept the plea to manslaughter in full satisfaction of the indictment and the accused is to stand trial on the charge of murder.

2 By a notice dated 25 September 2009, the Director of Public Prosecutions notified the accused’s solicitor that the prosecution intended to adduce evidence of “tendency” pursuant to s 97(1) of the Evidence Act 1995. The notice at paragraph 3 identified the substance of what was stated to be the tendency evidence to be adduced as being contained in the witness statements numbered 1 to 12 and the COPS entries being number 13.

3 The Crown does not now seek to rely on this material to demonstrate a tendency on the part of the accused but as evidence of the relationship between the accused and the deceased. Much of the proposed evidence is objected to by Mr Dailly SC for the accused and the parties have sought pre-trial rulings as to its admissibility. The witness statements and the COPS entry of 17 July 2004 have been marked as exhibits A to M on the voir dire.

4 Mr Dailly has identified the principal issues in the trial as being self-defence, provocation and the partial defence of substantial impairment by abnormality of mind. The accused intends to call in his case Dr Olav Nielssen and Dr Stephen Allnutt both of whom are psychiatrists. During the voir dire, Dr Nielssen’s report dated 11 August 2009 and Dr Allnutt’s report dated 5 August 2009 were provided to me and these reports are now marked as exhibits one and two on the voir dire.

5 It is the histories given by the accused of his relationship with the deceased to the psychiatrists which the Crown contends makes the evidence upon which it seeks to rely relevant. The Crown submits that what was said by the accused to Dr Allnutt and to Dr Nielssen was neither complete nor accurate and the psychiatric opinions may be founded on assumed facts which may turn out to be otherwise. The Crown argues that it should be permitted to adduce relationship evidence to enable the psychiatric diagnoses to be challenged. Of particular significance is said to be Dr Nielssen’s diagnosis of a possible delusional disorder.

6 The relationship evidence which the Crown proposes to lead is substantially confined to a period from the commencement of the marriage in 2000 until about mid-2005. The evidence discloses difficulties in the marriage which are not recorded in the histories in the psychiatric reports. There are accounts given in a number of the statements of representations by the deceased that the accused had been violent towards her. In particular, on 17 July 2004 the deceased with Nahla Makdissi attended Parramatta Police Station and informed Constable Waddell that her husband had slapped her very hard about the head and face area with both of his open hands. When the allegation of assault was put by the police officer to the accused, he denied that he had assaulted anybody.

7 The Crown argues that the evidence of domestic violence is relevant as it makes much less significant what is said to be the accused’s consuming delusional belief in his wife’s infidelity and the psychological effect upon him of disputes over money.

8 The Crown is entitled to challenge the opinions of the psychiatrists. Those opinions will found the accused’s partial defence of substantial impairment. Furthermore, the jury is entitled to decline to act on the evidence of the psychiatrists if it considers that there is other evidence which outweighs the psychiatric evidence or it thinks that the facts differ from those on which the psychiatrists proceeded, or it thinks that the reasons expressed by the psychiatrists for their opinions, even having regard to their expertise, do not support their conclusion.

9 In his report at page 7, Dr Nielssen opines that:

“the diagnosis of possible delusional disorder is made on the basis of the history of a belief that his late wife had affairs in Lebanon and after she arrived in Australia and the diagnosis of Dr Benjamin, who initiated treatment with a low dose of antipsychotic medication.”

10 In his review of documents provided to him, the psychiatrist recounted that Dr Benjamin, inter alia, in a letter dated 16 March 2007, wrote that the accused believed his second wife was unfaithful and “noted the history of an Apprehended Violence Order in 2004. Dr Benjamin concluded that Mr Gabriel may be ‘suffering with delusional disorder (jealous type)’ and a secondary depressive disorder”.

11 Dr Allnutt considered at page 13 of his report that at the time of the offence the accused manifested an “underlying condition with an abnormality of mind”.

12 There are, in my opinion, difficulties with the Crown’s application which are as follows:

(i) At the present time, I am unable to assess what reliance was placed by the psychiatrists in making their psychiatric diagnoses on the histories given by the accused. This has an immediate impact on the question of relevance of the relationship evidence sought to be adduced by the Crown as I cannot determine if that evidence could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings which is whether at the time of the act causing death, the accused’s capacity either (1) to understand events, or (2) to judge whether his actions were right or wrong, or (3) to control himself was substantially impaired by an abnormality of mind arising from an underlying condition. It is plain that both psychiatrists were influenced by the diagnosis of Dr Benjamin in 2007. As I indicated during argument on Wednesday, this issue cannot be resolved, in my opinion, without the psychiatrists being questioned on a voir dire.

(ii) It seems that there is a deal of available material to enable the Crown to put to the psychiatrists that the accused’s belief that his wife was unfaithful was not delusional without recourse to the proposed relationship evidence. Indeed Dr Allnutt states at page 12:

“Having regard to his belief of his wife’s infidelity and her designs on his assets, I do not believe there are adequate grounds to conclude that these are delusional beliefs, these beliefs appear to be based on a rational premise.”

(iii) The evidence upon which the Crown relies to found its submission that the relationship was largely dysfunctional does not extend beyond mid-2005 – some two and a half years prior to the acts causing death.

13 It is clear, however, that the admission of the previous representations by the deceased that she had been assaulted by the accused will inevitably be prejudicial to him. I do not propose to admit evidence of this nature upon the speculative basis that it might have some impact upon the diagnoses of the psychiatrists.

14 The probative value of the previous representations of assault on the material presently before me can only be considered to be slight whereas there is a significant risk of an impermissible course of reasoning by the jury. The probative value of this evidence sought to be adduced by the Crown presently appears to me to be outweighed by the danger of unfair prejudice to the accused and I do not propose to admit it: s 137 of the Evidence Act.

15 It is unnecessary for present purposes to consider the objections made by Mr Dailly to the previous representations by the deceased which were founded upon s 65(2)(b) of the Evidence Act.

16 The evidence of relationship sought to be adduced by the Crown was not confined to previous representations of violence. I propose now to deal with the accused’s objections to each of the statements.

17 As to the objections to the statement of Souad Isber (exhibit A), I am not presently persuaded that the material in [11] and [13] is relevant evidence: s 55 of the Evidence Act. I do not admit [17], [19], [25], [26] and [28] for the reasons given previously.

18 As to the objections to the statement to Elias Challouf (exhibit B), I am not presently persuaded that the material in [20] and [23] is relevant evidence. I do not admit [25], [26] and [27] for the reasons given previously.

19 As to the objections to the statement of George Esber dated 23 January 2008, I do not admit the last two sentences of [8] and the last three sentences of [9] for the reasons previously given. I am not persuaded that [10] and [11] are relevant nor am I persuaded that [5] of the statement of George Esber dated 30 January 2008 is relevant: s 55 of the Evidence Act.

20 As to the objections to the statement of Sonya Bacha dated 5 February 2008 (exhibit C) I do not admit the conversations about the deceased being hit contained in [10] for the reasons previously given. I propose to admit so far as the objection to [14] is concerned the words “but he was not lavish” provided these words were used by the deceased. As to the conversations which are pressed by the Crown in [15], I am not persuaded that they are relevant: s 55 of the Evidence Act.

21 As to the objections to the statement of Nahla Makdissi dated 23 January 2008, I do not admit for the reasons previously given [13] and [14]. I do not admit the words “and that she had pressed charges” in [15]. I do not admit the last two sentences in [16]. I am not persuaded that this is relevant evidence: s 55 of the Evidence Act. I do not admit the last three sentences of [17]. As to [18] I do not admit what was said by the deceased in the first sentence nor do I admit the second last sentence in that paragraph.

22 As to the objections to the statement of Mouna Azizi (exhibit H), I do not admit in the first sentence in [7] the words commencing “when we had heard” until the end of the sentence. There are difficulties with the form of that evidence. In any event, I am not persuaded that it is relevant: s 55 of the Evidence Act. Nor am I persuaded that [10] is relevant. I exclude [12] and [13] for the reasons previously given. I also exclude under s 137 of the Evidence Act the words “and that he would never do anything like this again” from [15].

23 As to the objections to the statement of Mario Makdissi (exhibit J), I exclude for the reasons previously given the words “I didn’t hit her and all that crap” from [11]. As to [14], I do not allow the Crown’s proposal to adduce from the witness “they didn’t want to have anything more to do with the couple”. The suggested relevance of providing an explanation of lack of ongoing contact has little probative value. Its probative value is outweighed by the danger of unfair prejudice to the accused: s 137 of the Evidence Act.

24 As to the objections to the statement of Nahime Awad (exhibit K). For the reasons previously given, I exclude the last three sentences in [8]. I do not admit [9]. As to [10], I admit the first sentence. It is relevant to the issue of the accused being “too controlling” which is raised in Dr Allnutt’s report at p 9. In my view, apart from relevance, what was said by the deceased is admissible under s 65(2)(b) of the Evidence Act. As to [11] I do not admit the first two sentences. I exclude from the third sentence the words “because of his abuse”. I exclude from [12] the last sentence for the reasons previously given.

25 As to the statement of Mark Waddell and the evidence of the complaint in the COPS entry (both exhibit L), I do not admit this evidence for the reasons previously given.

26 As to the statement of the deceased (exhibit M), I do not admit this evidence for the reasons previously given.

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