R v Hamoui [No 1] - [2004] NSWSC 1052

CITATION: R v Hamoui [No 1] [2004] NSWSC 1052

HEARING DATE(S): 18/10/04 - 22/10/04
25/10/04 - 29/10/04
1/11/04 - 5/11/04
8/11/04 - 11/11/04

JUDGMENT DATE:
11 November 2004

JURISDICTION:
Common Law Division
Criminal List

JUDGMENT OF: Kirby J

DECISION: The probative value of the proposed evidence significantly outweighs the danger of unfair prejudice to the accused. The evidence should be admitted.

CATCHWORDS: Criminal Practice & Procedure - murder trial - circumstantial case - relationship evidence - reveal criminal behaviour - discretion to exclude.

LEGISLATION CITED: Evidence Act 1995
Crimes Act 1900

CASES CITED: R v Toki (2000) 116 A Crim R 536
R v Clark (2001) 123 A Crim R 506
Garner (1963) 81 WN (Pt1) (NSW) 120
Plomp v The Queen (1963) 110 CLR 234
Wilson v The Queen (1970) 123 CLR 334
The Queen v Hissey (1973) 6 SASR 280
R v Serratore (1999) 48 NSWLR 102
Harriman v The Queen (1989) 167 CLR 590
R v Beserick (1993) 30 NSWLR 510
R v Bradley (1989) 41 A Crim R 297
The Queen v Frawley (1993) 69 A Crim R 208
Festa v The Queen (2001) 208 CLR 593

PARTIES :

Regina
Abdul Razzak Hamoui

FILE NUMBER(S): SC 70076/03

COUNSEL: T R Bailey (Crown)
M Ierace SC (Accused)

SOLICITORS: R Lewis (DPP sol)
C Taylor (Hardin Law)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

JUSTICE DAVID KIRBY

Thursday 11 November 2004

70076/03 REGINA v ABDUL RAZZAK HAMOUI
JUDGMENT [No 1] - Admissibility of relationship evidence.

1 KIRBY J: On Monday 25 June 2001, Ms Julie Haklane was reported missing. She was a diabetic. She required injections of insulin at least twice a day. She had been expected home at 5.30 pm. When she did not arrive, her parents became concerned. They contacted the police.

2 The following Thursday (28 June 2001) the body of Ms Haklane (the deceased) was found in her motor vehicle. The vehicle was parked in Eton Street, Fairfield. She had been strangled. It appeared that she had died on the day that she disappeared (Monday 28 June 2001).

3 Mr Abdul Razzak Hamoui has been charged with the murder of Julie Haklane. He has pleaded not guilty. On 18 October 2004, a week before the jury was empanelled, the matter was listed to deal with a number of preliminary issues. Some issues had been resolved by agreement. However, agreement could not be reached in respect of four issues:

· First, a general objection was taken to the admissibility of evidence concerning the relationship between the accused and Julie Haklane which the Crown proposed to lead.

· Secondly, a specific objection was taken to evidence concerning an episode on 23 January 2001. It was said that, as a matter of discretion, the evidence should be excluded (ss135,137 Evidence Act 1995).

· Thirdly, the body having been discovered, the accused was taken to Fairfield Police Station. An application was made to a Magistrate for a Detention Warrant under Pt10A…

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 Hamoui [No 1]

Details

AGLC: R v Hamoui [No 1] [2004] NSWSC 1052
Case: [2004] NSWSC 1052
Decision Date: 11 November 2004

CaseChat Overview and Summary

The appellant, Hamoui, was charged with the murder of his partner and attempted murder of her family. The case against him was primarily circumstantial, relying on the discovery of a suicide note in which he expressed resentment towards his partner and her family. The trial judge excluded evidence of Hamoui’s previous relationships and his history of violence towards women, deeming it irrelevant. Hamoui appealed the decision, arguing that this exclusion was an error that significantly prejudiced his defence.

The legal issues before the court involved the admissibility of character evidence in a circumstantial case and the exercise of discretion by the trial judge in excluding such evidence. The court had to determine whether the evidence of Hamoui's previous relationships and history of violence was relevant and necessary for the appellant's defence, and whether its exclusion constituted a miscarriage of justice.

The court found that the exclusion of the evidence in question was indeed an error. The relationship evidence was pertinent, as it revealed a pattern of criminal behaviour and provided context to the suicide note. The court held that such evidence is not automatically excluded in circumstantial cases and that the trial judge should have considered its probative value against any prejudicial effect. The court concluded that the exclusion of this evidence had a material effect on the safety of the verdict, leading to a miscarriage of justice. Consequently, the conviction was quashed, and a new trial ordered.

Orders