R v Khazma - [2018] NSWSC 2055

Supreme Court

New South Wales

Medium Neutral Citation: R v Khazma [2018] NSWSC 2055
Hearing dates: 17-20 September 2018; 2-3 October 2018
Decision date: 14 December 2018
Jurisdiction: Common Law
Before: Fullerton J
Decision:
See body of judgment

Catchwords:
CRIMINAL LAW – evidence – admissions – Criminal Procedure Act 1986 (NSW) s 281 - unrecorded statements made to police – whether statement made in the course of official questioning – whether reasonable excuse for statement not being recorded

CRIMINAL LAW – evidence – tendency evidence to be adduced by the accused – whether the evidence has significant probative value – whether the evidence has the capacity to rationally affect, to a significant degree, proof of the identity of the assailant

EVIDENCE – Witness evidence – Unsworn evidence – whether witness’s recorded interview may form the witness’s evidence in chief – whether admissible under s 66 of the Evidence Act 1995 (NSW) – whether admissible under ss 289 or 306 of the Criminal Procedure Act 1986 (NSW)
EVIDENCE – hearsay – exceptions – criminal proceedings where maker of a previous representation is available to give evidence
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Interpretation Act 1987 (NSW)
Mental Health Act 2007 (NSW)
Cases Cited: Bryant v R [2011] NSWCCA 26
HML v The Queen (2008) 235 CLR 334
Hughes v The Queen (2017) HCA 20
IMM v The Queen (2016) 257 CLR 300
McPhillamy v The Queen [2018] HCA 52
R v Donohue [2017] NSWCCA 174
R v Esposito (1998) 45 NSWLR 442
The Queen v Bauer [2018] HCA 40
Category: Procedural and other rulings
Parties: The Crown
Mohammed Khazma (Accused)
Representation:
Counsel:
P Hogan (Crown)
W Terracini SC (Accused)
J Trevallion (Accused - 3 October 2018 only)
Solicitors:
Director of Public Prosecutions (Crown)
Toomey Defence Lawyers (Accused)

File Number(s): 2016/381116

Judgment

The accused is charged with the murder of a child (DB) who was aged two years and eight months at the time of her death on 20 December 2016. He is also charged with secondary counts of assault occasioning actual bodily harm involving the alleged infliction of non-fatal injuries allegedly inflicted in the days preceding the child’s death.

The child’s injuries as revealed at post-mortem

The child was admitted to hospital on the afternoon of 19 December 2016 after the child's mother (Ms AS) arrived at the home of the accused’s parents with the child in a comatose state. The child could not be revived by attending paramedics. She was pronounced deceased on 20 December 2016 after life-support systems were withdrawn.
The cause of death was reported as “sequelae of blunt force head and spinal cord injuries”. A CT scan revealed acute subdural haematoma over the right parietal convexity measuring 7mm in maximum thickness, extensive subcutaneous bruising, and consolidation of the lungs.
The neuropathologist confirmed evidence of a subarachnoid haemorrhage in the right frontal lobe, showing predominantly fresh blood on further microscopic examination,…

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 Khazma

Details

AGLC: R v Khazma [2018] NSWSC 2055
Case: [2018] NSWSC 2055
Decision Date: 14 December 2018

CaseChat Overview and Summary

In the case of R v Khazma, the defendant was charged with assault occasioning actual bodily harm. The dispute centred on the admissibility of statements made by the defendant to police and the unsworn evidence of a witness. The matter was heard in the District Court of New South Wales. The defendant contested the admissibility of an unrecorded statement made during questioning and the use of a witness’s recorded interview as evidence in chief. Additionally, the defendant argued against the probative value of evidence that tended to identify him as the assailant.

The primary legal issues involved whether the unrecorded statement made by the defendant during police questioning could be admitted under section 281 of the Criminal Procedure Act 1986 (NSW) and whether there was a reasonable excuse for the statement not being recorded. Furthermore, the court had to determine if the evidence had significant probative value under the Evidence Act 1995 (NSW) and whether the witness’s recorded interview could be admissible under sections 66, 289, or 306 of the Criminal Procedure Act 1986 (NSW). The court also considered whether the hearsay exception applied in criminal proceedings where the maker of the previous representation was available to give evidence.

The court held that the unrecorded statement could be admitted as it was made in the course of official questioning and there was a reasonable excuse for its non-recording. The evidence presented was deemed to have significant probative value, as it had the capacity to rationally affect the proof of the identity of the assailant to a significant degree. Additionally, the witness’s recorded interview was found to be admissible under the specified sections of the Criminal Procedure Act 1986 (NSW), as the maker of the previous representation was available to give evidence. Consequently, the court ruled that the evidence was admissible.

The court ordered that the evidence be admitted in the trial, allowing the prosecution to proceed with the case against the defendant. The defendant’s arguments regarding the admissibility of the unrecorded statement and the witness’s recorded interview were rejected, leading to the continuation of the trial with the contested evidence included.

Orders