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 of the Crimes Act 1900. The warrant was issued. The accused was thereafter interviewed and a buccal swab taken to enable DNA testing. It is said on behalf of the accused that there was impropriety or illegality on the part of the police in obtaining the warrant. The evidence should be excluded under s138 of the Evidence Act.

· Fourthly, the Crown identified one aspect of the deceased's account of the episode of 23 January 2001 (the subject of the second objection) which was said to correspond to the circumstances in which her body was found on 28 June 2001, such that the Crown could rely upon the coincidence rule (s98 Evidence Act). The accused denied the applicability of that rule.

4 On the morning of 25 October 2004, shortly before the jury was empanelled, I gave rulings in respect of each of these issues, namely:

· First, that as a generality, the relationship evidence was relevant and admissible as an aspect of the Crown's circumstantial case. It should not be excluded under s135 or s137, subject to counsel for the accused having the right to object to particular phrases or passages in the statements which had been served. Having foreshadowed that ruling, counsel agreed upon the exclusion of particular matters (under s137). Other aspects may arise and can be dealt with before a witness gives evidence.

· Secondly, the incident of 23 January 2001 should not, as a matter of discretion, be excluded under s137 (or s135). The statement made by the deceased on 24 January 2001 and the amendments made by her to that statement three days later should be admitted.

· Thirdly, there was neither impropriety nor illegality in the obtaining of the Detention Warrant. There is no occasion, therefore, for the exclusion of this evidence under s138 of the Evidence Act.

· Fourthly, the Crown should not be entitled to rely upon the coincidence rule. The fact that the seat was back both at the time of the alleged abduction (on 23 January 2001) and at the time of the murder is nonetheless relevant and admissible.

5 I now provide, in this judgment, my reasons for the rulings in respect of the first and second issues, the relationship evidence. I will, in separate judgments, deal with the remaining issues.

The relationship evidence.

6 Mr Hamoui was born on 20 April 1974. In June 2001 he was therefore 27 years old. Ms Julie Haklane was 24 years old (born 8 August 1976). Mr Hamoui Is a Muslim. Ms Haklane was a Christian. Ms Haklane described the accused as her "first love". They began their relationship approximately five years before her death.

7 The relationship began well enough. However, after several years they began to argue and fight. Threats were made by Mr Hamoui against Ms Haklane, including threats to kill. They repeatedly broke up, and then started seeing each other again. The deceased's sister, Ms Naha Erdem witnessed episodes of physical and verbal abuse. She saw bruising to the arms and legs of Julie Haklane which her sister attributed to the accused. He grabbed her arms, punched her and kicked her. He continually telephoned her, sometimes late at night, often at hours inconvenient to family members. He was very possessive. In front of members of the family he said this:

"If I can't have you, no-one else can fucking have you."

8 On other occasions Mr Hamoui was heard to say:

"If you get another boyfriend, I'm fucking going to kill you."

9 The deceased's mother and sister will also give evidence of the turmoil in Julie Haklane's relationship with the accused in the days immediately before her death. On Saturday 23 June 2001, Julie Haklane saw her sister Naha Erdem at the home of a friend. Julie was crying. She had a red mark on the base of her neck where she said Abdul Hamoui had grabbed her. She said that Mr Hamoui had followed her. To escape she had driven in search of her sister.

10 Having heard this complaint, Ms Erdem resolved to find Mr Hamoui. She went searching for him in her vehicle. She found him sitting in his car. She told him to stop stalking Julie. He responded by saying that they were sleeping together. Ms Erdem insisted that Julie had a new boyfriend, Ray (Bayeh). She was sleeping with him. Once she returned to the house, she recounted the conversation to Julie. Julie confirmed that she was "with Ray now and didn't want anything else to do with Abdul".

11 Apart from such evidence, the Crown seeks to prove four particular episodes of violence which Julie Haklane reported to the police.

The assault of July 1999.

12 On 3 July 1999 Julie Haklane attended the Merrylands Police Station. She spoke to Constable Cochran. Constable Cochran took a statement which she recorded in her police notebook. The statement was signed by Julie Haklane. Ms Haklane said that the first three years of her relationship with Mr Hamoui had been happy. He had treated her "like a princess". There had been no violence. On 28 June 1999, however, he "went missing". When Ms Haklane located him, he was behaving strangely. She tried to speak to him. He did not want her in his house. She reminded him of certain money he owed her. He thereupon grabbed her by the jumper and dragged her out of the house. She responded by kicking the side of his car. He retaliated by kicking her, using both feet. He is a competitive kick boxer. Ultimately his brother, Omar, asked him to stop, which he did. Ms Haklane then went to the Merrylands Medical Centre where she saw Dr Laughlin. She thereafter attended the Merrylands Police Station. She had severe bruising to her right thigh. Her statement to Constable Cochran concluded with these words:

"At this stage, I would just like Abdul spoken to by the police. I don't want any charges laid."

13 Constable Cochran spoke to Mr Hamoui. He said that he had kicked Julie Haklane once because she had damaged "a lens" on his vehicle.

Assault 6 January 2001

14 At 3.20 am on Saturday 6 January 2001, Constables Hansford and Sweeney attended Ms Haklane's home. Ms Haklane recounted an incident which Constable Hansford recorded in her notebook, which Ms Haklane signed. She said that "four weeks ago Abdul and I split up". On the evening of 4 January 2001 she drove to his home to return his belongings. He wanted to speak to her. She, however, did not wish to speak to him. He reached into the cabin of the vehicle and took her car keys. The statement described what happened thereafter in these words:

"He said, 'Julie, are you seeing anyone?' I said, 'It's none of your business.' He said, 'Can I go through your phone to see if you've rang any guys?' I said, 'No, it's none of your business, please give me my keys back.' My mobile phone rang and it was my mum and I told her what was happening."

15 Ms Haklane said that her father was "on his way". Mr Hamoui returned her keys. Later, according to Mr Hamoui, Mr Haklane came to his home. Mr Haklane produced a handgun. He threatened to shoot Mr Hamoui if he did not leave Julie alone.

16 On 6 January 2001, half an hour after midnight, Mr Hamoui rang Julie. He said he was sorry for what had happened. She told him she did not wish to speak, and hung up. He rang back a number of times. Ultimately he spoke to her. He said he simply wanted to know who had shot his car. He drove past her home to show her the damage. Ms Haklane recorded in her statement to the police that she saw a bullet hole through the windscreen. According to Ms Haklane, Mr Hamoui said this: (para 7)

"Your family wants to get dirty and use guns. I'm going to go and get a gun now and I'm going to make sure there is blood shed tonight."

17 Ms Haklane then resolved to ring the police. Whilst the police were taking a statement from Ms Haklane on 6 January, Mr Hamoui telephoned her a number of times. The police spoke to him. He described to the police the threat by Julie's father to shoot him, the production of the handgun, and the bullet hole. However, he declined to attend the police station.

The abduction on 23 January 2001

18 On 23 January 2001, Julie Haklane made a further statement to the police. She signed each page. She said that she had formed a new relationship and, as a consequence, "Abdul was very upset". She nonetheless wished to remain friends with Abdul. She still "cared for him". From time to time he made excuses to see her.

19 On Tuesday 23 January 2001, Mr Hamoui asked Mr Haklane to drive him to Merrylands Police Station. He wished to report an assault. They then went to Parramatta. When her phone rang he snatched it from her saying: "I'll bet that's him." He ran off. Ms Haklane said that she then found a public phone. She repeatedly rang Mr Hamoui's mobile phone. When she was unable to speak to him, she returned home. It was about 7.30 pm.

20 Mr Hamoui ultimately returned her calls at 9.00 pm. At first he refused to return the mobile phone. He then agreed to do so, suggesting that she pick it up outside his home.

21 Ms Haklane then drove to Mr Hamoui's home. He got in her car. According to the account she gave the police, he was very aggressive. He directed her to drive to Cabramatta to pick up the phone from a friend's place. During the course of the journey, he asked her to park the car. When she did so, he produced a gun, which he pointed at her. He said that if she tried to run or scream he would shoot her. They remained parked for the next hour. He would not let her go. Indeed he got more and more angry. He kept the gun against her face and head, threatening her.

22 Ms Haklane complained of feeling faint. She needed insulin. She asked to go home. On her account Mr Hamoui refused to allow her to go home. Instead, he said that he would drive. He directed her to put the passenger's seat back as far as possible. He told her that if she lifted her head he would shoot her. He drove with the gun on his lap.

23 Eventually Mr Hamoui stopped the vehicle. Ms Haklane was crying. He then said this: (para 17)

"This is all because I love you, I can't live without you. I'd rather kill you and me before I let another man have you."

24 Mr Hamoui demonstrated the gun was loaded. He then pointed the gun under his chin and said: (para 18)

"I'm sorry to put you through this. I'm sorry, I'm going to kill myself."

25 Ms Haklane then grabbed the barrel of the gun. There was a struggle. The gun hit the passenger side windscreen, causing it to crack. Ultimately Ms Haklane said she started to scream. She said to Mr Hamoui these words: (para 19)

"I can't take this more, either kill me or kill yourself because I can't take this any more."

26 She claimed to be nearly unconscious. Mr Hamoui told her to calm down. He said he would let her go. He asked that she forgive him. He added that he was going to kill himself. He then got out of the vehicle. Ms Haklane then drove straight home. It was about 3.30 am. Her 16 year old brother Anthony was waiting for her return. She told him what had happened. Anthony remembered her words as follows:

"Abdul put the gun to my head and hit me."

27 She then drove with Anthony to the Merrylands Police Station. She saw Constable Hume at about 3.40 am. She briefly described what had happened in words consistent with the account she later gave. She repeated that account to Senior Constable Azzopardi. She said, however, that she needed to return home, to take insulin, and to return her young brother. The police drove her home and waited for her. She then returned to the Merrylands Police Station about 15 minutes later. She was accompanied by two male friends, one of whom was Mr Allen Yousif, her then boyfriend. According to Mr Yousif, she said this:

"Abdul kidnapped me with a gun, I've had enough. I am gonna report it, he will kill me otherwise."

28 Detective Senior Constable Danyluk saw Ms Haklane at about 4.30 am. She pointed to a graze to the side of her neck and swelling to her forehead. Her injuries were photographed. Detective Danyluk also saw the crack in the window caused by the rifle barrel. He took a detailed statement which Ms Haklane then signed.

29 At 2.25 pm the same day (24.01.01) Mr Hamoui was arrested. His room was searched. A shortened .22 calibre rifle with a silencer was found. It was loaded with a bullet in the chamber and 12 live rounds in the magazine. Mr Hamoui was charged, relevantly, with the following offences:

· Detain for advantage and cause injury to victim.

· Maliciously inflict grievous bodily harm with intent to do so.

· Possess unauthorised firearm and prohibited firearm.

30 On 26 January 2001, Julie Haklane telephoned Detective Danyluk. She said that she had seen a counsellor. She had discussed her problems with Mr Hamoui. She also said that she had spoken to Mr Hamoui. She wished to amend her statement in a number of respects.

31 On Saturday 27 January 2001, Ms Haklane again attended the Merrylands Police Station. She was given a copy of her statement. She made handwritten amendments to a number of paragraphs. In substance, she withdrew the allegation that Mr Hamoui had threatened her. Rather, he had threatened to end his own life by shooting himself. Her purpose in going to the police was to help him.

32 On 14 February 2001, Ms Haklane again went to the Merrylands Police Station. She was told that her amended statement had been sent to the solicitor for the DPP. The advice of the DPP was awaited. Mr Hamoui then entered the foyer of the police station. He spoke to Detective Danyluk. Detective Danyluk repeated what he had just said to Ms Haklane. Detective Danyluk described Mr Hamoui's reaction in these words: (S'ment R Danyluk 20.11.01, para 21)

"21. Hamoui did not appear satisfied with this response and stated in the presence of Haklane that Haklane had been coerced into making her statement to police on the 24 January 2001. This was immediately denied by Haklane. They then both left the Police Station."

33 On 3 April 2001, Ms Swain, the solicitor for the DPP, saw Julie Haklane. She made a contemporaneous note of her conference (Exhibit 4 on the Voir Dire). The notes included criticisms by Ms Haklane of Detective Senior Constable Danyluk. She said:

"I want charges which relate to me to be withdrawn. Bob [Detective Danyluk] told me he needed info to get help for Abdul. I kept telling him I didn't want to make a statement. I was out of it and half asleep. He should make people read the statement before people sign it."
(parenthesis added)

34 Ms Haklane also said that she did not feel well. She repeated that she had not been threatened by Mr Hamoui. Rather, he had threatened to end his own life. The notes of Ms Swain included these words, recording the words of Ms Haklane:

"We had broken up. I was seeing another guy Alan. Alan put the gun in his mouth (he was crazy).

On and off with Abdul."

35 Ms Haklane described to Ms Swain her feelings towards Mr Hamoui (as at 3 April 2001) in these words:

"Things have settled down a lot. Now Abdul is dealing with the gun issue - when he was threatened. Now his pride and manhood are returning. He felt stripped of that when he saw Allan take his fiancee (me) away from him.
Got engaged on 14/2/01 - got me a new ring.
Plan to marry after court is all over."

36 On 10 May 2001, the DPP withdrew the charges of detain for advantage and maliciously inflicting grievous bodily harm with intent. It persisted with the firearms charges.

The assault on 16 June 2001.

37 The final incident relied upon by the Crown occurred on or about 16 June 2001. Ms Haklane's best friend, Ms Diana Lichaa, was at Ms Haklane's home. Mr Ray Bayeh was also there. He had become Ms Haklane's boyfriend in about May 2001. Ms Haklane and Ray sat opposite the window "kissing and cuddling on the lounge". As they were doing so, Julie Haklane's mobile phone rang. She left the room momentarily to answer it. When she returned she appeared worried. She said: "Abdul's outside stalking the house." She asked her friend to drive her to the rear of a church, where Ray would pick her up. Julie Haklane and Ms Lichaa walked to Ms Lichaa's vehicle. As Ms Lichaa was reversing the vehicle, Julie asked her to stop, so that she could telephone Abdul. Whilst the car was stationary, Abdul opened the back door and got into the back seat. He sat immediately behind Julie Haklane. Ms Lichaa's account of what then happened was in these terms: (para 18)

"... he said, 'Give me a lift home.' Julie just looked at me and said, 'Okay Diana, we'll give him a lift home.' He said, 'Where are you going?' Julie said, 'I'm going to go pick my sister up from the Albion.' Abdul then started saying 'Who was that guy that you were kissing in your house.' Julie said, 'There was no guy.' Then Abdul described what Ray was wearing and where we were all sitting in the lounge room ... Julie tried to tell him he was just a family friend. Abdul started calling her names like, 'Slut, you're going slutting around again, you whore.' As I was driving Abdul reached around across the centre console and hit Julie on the face. I think he used his right hand and it was closed, like a fist. Julie was trying to push him away and he scratched her on the right cheek. ... I was very scared and pulled the car over and grabbed Abdul's right arm ... "

38 In the course of the struggle, the plastic centre console broke into a number of pieces. Abdul then got out of the vehicle. He took with him Julie Haklane's mobile phone. Ms Haklane removed a ring from one of her fingers, which she then threw from the car window.

39 The next day, Sunday 17 June 2001, Ms Haklane and Ms Lichaa went to the Merrylands Police Station. Ms Haklane described what had happened. The police officer made a note in his notebook. Ms Haklane said, however, that she did not want the complaint "put on the computer".

Text messages before disappearance.

40 According to the Crown, Julie Haklane was due home on Monday 25 June 2001 at about 5.30 pm, when she would take her insulin. Mr Hamoui was required to report to the Merrylands Police Station on the firearms charges. He did so at 5.10 pm. The Crown asserts that mobile phone records and other material suggest that Julie Haklane met the accused either shortly before, or shortly after, he reported for bail. She was later murdered.

41 Communications between the deceased and the accused in the days before her disappearance, and especially on the day of her disappearance, are obviously important. A number of text messages were sent by Julie Haklane to the mobile phone of the accused in the 24 hours before she was reported missing on Monday evening, 25 June 2001. The police interviewed Mr Hamoui in the early hours of Tuesday 26 June 2001. The interview was recorded on video. In the course of the interview the police asked Mr Hamoui to call up text messages that had been preserved on his mobile phone, received from Ms Haklane. Mr Hamoui did so. The messages in some cases were affectionate. They included the following message from Ms Haklane to the accused sent on 24 June 2001 at 2.13.46 am: (ERISP 26.06.01 Q86)

"There are three things I need in this world, the sun, the moon and you, the sun for the light, the moon for the night and you forever to hold me tight. XXX"

42 A further message on her work mobile sent at 10.23.15 pm on Sunday 24 June 2001 (less than 24 hours before her disappearance) was as follows: (ERISP Q90/91)

"Hey, Abs, I asked M angel to watch over you, but he came back sooner than expected, I asked why he smiled and said, 'an angel doesn't need to watch over another angel'."

43 When interviewed by the police, Mr Hamoui described Ms Haklane as his girlfriend. He denied knowledge of Julie Haklane's other relationships, including with Mr Ray Bayeh. He believed Mr Bayeh was simply a friend.

Submissions on admissibility.

44 Mr Ierace SC, on behalf of the accused, objects to all of the proposed relationship evidence, and alternatively to evidence concerning the abduction on 23 January 2001. In support of the general objection, counsel drew attention to the statement of principle of Howie J in R v Toki (2000) 116 A Crim R 536 where his Honour said this: (at 540)

"The evidence is admitted not simply because it describes the relationship of the parties, but because statements or acts of the parties occurring within the relationship are relevant to the issues before the jury."

45 Evidence of the relationship must be relevant to the facts in issue. According to the accused, the Crown had not identified any specific question which the relationship evidence might reasonably and logically elucidate. Yet it was highly prejudicial. The jury may regard it as demonstrating a propensity on the part of the accused to resort to violence.

46 Alternatively, in the context of significant evidence concerning the relationship between Ms Haklane and the accused, as proposed by the Crown, the incident on 23 January should be excluded under s137 of the Evidence Act. It was, according to the appellant, unfairly prejudicial for a number of reasons.

47 First, the incident involved the same car as the car in which the body of the deceased was found five months later. The jury would find it difficult to put that aspect to one side. Yet, there would be no evidence that the deceased met her death in the car. The evidence to be presented by the Crown would be consistent with her having been murdered elsewhere and then placed in the car. There would be no direct evidence as to who was responsible for her murder, or even that it was the work of one perpetrator.

48 Secondly, one could not ignore what happened after Ms Haklane's initial complaint. She had then altered her statement within three days. She withdrew the allegations against Mr Hamoui. Instead, she made allegations of impropriety against the police in the taking of the statement. She cannot now be cross examined. It would be impossible for the jury to satisfactorily resolve these issues. If the issue were opened up, a number of witnesses would need to be called. Inevitably it would give rise to a "trial within a trial". It would be a distraction from the real issues.

49 The Crown responded that under the ordinary rules the evidence was admissible. It was highly probative. It could not be regarded as unfairly prejudicial. The Crown drew attention to R v Clark (2001) 123 A Crim R 506 where Heydon JA, after an extensive review of the authorities, identified the differing ways in which relationship evidence may be relevant. First, such evidence provided a realistic context within which the Crown case against the accused could be considered. Heydon JA said this: (at 575)

"... to exclude all evidence of tension and violence but leave in only evidence of cordiality would be misleading. The evidence was relevant because it prevented the issues from being considered in a 'vacuum' ( Wilson (1970) 123 CLR 334 at 344, per Menzies J). It avoided the jury having 'quite an artificial picture': Peake (1996) 67 SASR 297 at 300, per Millhouse J (Williams J concurring). It enabled presentation of the case 'in an intelligible and real fashion': Garner (1963) 81 WN (Pt 1) (NSW) 120 at 123, per Sugerman J. The evidence was 'the key to an assessment of the relationship between the [accused] and the [victim] and, as such, constituted part of the essential background against which the ... [accused's] evidence ... necessarily fell to be evaluated': B at 60."

50 Secondly, relationship evidence is ordinarily relevant to a determination of whether the accused had killed the deceased and done so with the appropriate intent. Heydon JA said this: (at 575)

"... It was material to consider whether the past dealing and mutual attitudes of the parties were such as to create a reasonable doubt in the appellant's favour or whether they were such as to increase the probability that a killing resulted.
The relationship was capable of casting light on whether the appellant killed the deceased, and, if he killed the deceased, what his mental state was: Hissey (1973) 6 SASR 280 at 289. The existence of a bad relationship increased the chance of a relaxation of normal inhibitions against killing. It thereby offered a potential explanation for any criminal conduct by the appellant. It established 'an atmosphere which would render it less unlikely that the offence charged would have been committed in the circumstances which arose on the occasion of [the accused's drive with the victim], having regard to the past relationship of the principals': Garner at 129 per Maguire J."

51 His Honour added: (at 575/6)

"Even though the relationship evidence was not tendered as going directly to motive, an evaluation of the motive issue and an evaluation of the probabilities in relation to whether the appellant killed the deceased, after a sudden quarrel or otherwise, would be carried out less realistically if there were an exclusion of all evidence of the bad terms existing between the appellant and the deceased. Evidence of a hostile relationship would enable the jury to draw adverse inferences from the circumstantial evidence pointing to the appellant's guilt; evidence of a good relationship, foreshadowed by the appellant in his records of interview and actually given in the witness box, would cause them to hesitate in doing so."

52 Thirdly, the evidence was also relevant because it could be predicted that the accused would rely upon evidence that his relationship with the deceased had been good (Garner (1963) 81 WN (Pt1) (NSW) 120, per Sugerman J at 123; Plomp v The Queen (1963) 110 CLR 234 at 251). His Honour added: (at 576)

"The evidence against the appellant was, apart from his confession to Mr Brown, entirely circumstantial: he made no direct admissions to the police and there was no direct witness of the crime . Where a case is entirely circumstantial, it is common for relationship to be considered as one of the circumstances ."
(emphasis added)

53 According to the Crown, each of the purposes identified by Heydon JA had application to this case. There was some material which, arguably, should be excluded under s137. That material had been discussed by counsel. Excisions had been made. What remained, according to the Crown, could not be regarded as unfairly prejudicial. It should be admitted.

Evidence relevant and probative.

54 I accept the Crown's submissions. The evidence concerning the relationship between the accused and the deceased (including evidence relating to the incident on 23 January 2001) is relevant in each of the three ways identified by Heydon JA in Clark.

55 First, the evidence provides a realistic context within which the Jury may examine the material said to implicate the accused. In Wilson v The Queen (1970) 123 CLR 334, Menzies J said this: (at 344)

"Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her."

56 In The Queen v Hissey (1973) 6 SASR 280, the Court (Bray CJ, Hogarth and Mitchell JJ) said this: (at 288/289)

"We think that it was relevant and indeed important for the jury to know the general terms upon which the parties were living. If evidence of this nature were to be excluded as being technically inadmissible, then equally it would be technically inadmissible for evidence to be tendered to the jury which might be favourable to an accused person, for example of a man having lived with his wife on terms of affection and harmony over a long period of years; and we think that such evidence would clearly be relevant and indeed important. When evidence of this kind is admissible it is admissible not only to prove the intent of the accused, but also the fact of the crime: R v Ball [1911] AC 47, per Lord Atkinson at p68; Wilson v The Queen (1970) 123 CLR 334, per Barwick CJ at p339."

57 Secondly, the concluding words in Hissey, in the passage above, emphasise the relevance of such evidence (especially in the context of a circumstantial case) to the issue of whether the accused committed the crime and did so with the appropriate intent. It is material from which inferences may logically and reasonably be drawn concerning those issues (Wilson v The Queen (supra) per Barwick CJ at 339; R v Serratore (1999) 48 NSWLR 102, per Dunford J, paras 21 and 22). It is evidence, to use McHugh J's words in Harriman v The Queen (1989) 167 CLR 590 at 630, which "tends to prove how or why the conduct, the subject of the charge, arose, or because it makes it more probable than not the conduct occurred at the time or place or in the way alleged."

58 Thirdly, the evidence in the Crown case will include assertions by the accused, when interviewed, that he had a good relationship with the deceased. They were girlfriend and boyfriend and loved each other. It will include a series of text messages from the deceased to the mobile phone of the accused shortly before she died (supra paras 41, 42). The messages are affectionate. That material is part of the picture, and an important part. But the Crown is entitled, in my view, to complete the picture. The complete picture, on the Crown case, was of an obsessive relationship (on the part of both the accused and the deceased) in which, in various situations, the accused repeatedly displayed intense emotion concerning the deceased.

Discretion.

59 In the course of argument, matters were identified relevant to the discretion under s137 (and s135). Episodes in a relationship which are remote in time may have less weight (R v Beserick (1993) 30 NSWLR 510, per Hunt CJ at CL at 521-522). There also needs to be some balance, so that the relationship evidence does not swamp the Crown case (R v Bradley (1989) 41 A Crim R 297 at 302). It is unnecessary that every argument between the deceased and the accused should be the subject of evidence. Statements by the accused may well be relevant to his state of mind and whether he intended to kill the deceased. Statements by the deceased, on the other hand, will only be relevant where her state of mind is a relevant issue (The Queen v Frawley (1993) 69 A Crim R 208, per Gleeson CJ).

60 Mindful of these limitations, the Crown said that it would limit the relationship evidence in the manner set out above. Evidence concerning prohibited weapons found by the police at Mr Hamoui's home on 24 January 2001 were not relevant to the episode the day before. There would be no reference to them. The rifle which was found (which was consistent with the description given by Ms Haklane) would be referred to as a "rifle", rather than as a "sawn off rifle". There will be no reference to the silencer which was fitted to that rifle.

61 In my view, as a generality, the relationship evidence has significant probative value. The statements by the deceased are, of course, hearsay, admissible as an exception to the hearsay rule. Ms Haklane is not available for cross examination. Nonetheless, again as a generality, such dangers as there may be of unfair prejudice (through resort to tendency reasoning) will be dealt with by an appropriate direction. In that context the probative value substantially outweighs the danger of unfair prejudice.

The episode of 23 January 2001.

62 The probative value of Ms Haklane's account of the supposed abduction on 23 January 2001 must be assessed in the light of her retraction of a number of the more significant allegations. The resolution of that issue is ultimately not dependant only upon Ms Haklane. She told her younger brother Anthony, shortly before she attended the police station, that "Abdul put a gun to her head and hit her". Once she arrived at the station, she gave an abbreviated account to Constable Hume, and then to Senior Constable Azzopardi. What she said, in substance, was the same as the more elaborate account in the statement taken by Detective Danyluk, which she signed. She repeated the same allegation that night to her boyfriend Allen Yousif.

63 It will be a matter for the jury to reach a view as to where the truth lies and why she provided differing accounts. She cannot, of course, be cross examined by the accused. The jury, nonetheless, will have her explanation (which is favourable to the accused) provided to the solicitor for the DPP, Ms Vivien Swain.

64 I regard the evidence as having significant probative value, whatever version represents the truth. The amended statement reveals the state of mind of the accused and the depth of his feelings for the deceased. On her amended version, he was about to take his own life because of his love for her and the presence in her life of someone else. Subject to s137, both statements should be admitted. It was said that Ms Haklane was sleep deprived and unwell. However, she had been given insulin not long before she saw Detective Danyluk. The statement is a coherent and logical account of the events which she claimed to be describing. Detective Danyluk said that she was given coffee. He said she was emotional but anxious to press ahead with the statement. She appeared able to do so. As a matter of probability (s142), I accept that account.

65 Should the evidence be excluded because the probative value is outweighed by the danger of unfair prejudice (s137), or for any of the reasons set out in s135? If admitted, the jury would be told that Mr Hamoui had a gun. They would also be told that he was charged with a number of offences as a result of Ms Haklane's complaint. They would learn that once Ms Haklane had provided her amended statement, certain charges were withdrawn, although the firearms charges remained. It is relevant to unfair prejudice that the deceased did not meet her death by a firearm. She was strangled.

66 The fact that the episode will reveal criminal conduct does not automatically lead to its exclusion, as shown by Harriman v The Queen (supra), per McHugh J at 630. Here the jury will be warned against propensity reasoning. The fact that the deceased's car was involved in both the episode of 23 January 2001 and the circumstances of her death (on 25 June 2001), does not, in my view, create unfair prejudice. It is an aspect of each episode, just as a bedroom or a particular part of a house may be an aspect in another case. Both episodes were very different, one involving a rifle, and the other culminating in strangulation. The fact that the car was involved in both will not give the episode more weight than it deserves, nor is it likely to inflame the jury, nor divert them from their task (see McHugh J in Festa v The Queen (2001) 208 CLR 593 at para 51).

67 The admission of evidence concerning the incident on 23 January 2001 will, no doubt, create the need for a number of witnesses who either saw Ms Haklane immediately after, or who dealt with her once she changed her mind. However, that is not unusual. It will simply become one of the issues in the trial.

68 In my view the probative value of the proposed evidence significantly outweighs the danger of unfair prejudice to the accused. The evidence should be admitted.

**********

Last Modified: 07/16/2007