R v Khoshdil - [2024] NSWDC 257

District Court

New South Wales

Medium Neutral Citation: R v Khoshdil [2024] NSWDC 257
Hearing dates: 23 May 2024
Decision date: 14 June 2024
Jurisdiction: Criminal
Before: S Hanley SC DCJ
Decision:
Relationship/context evidence is admissible other than as identified

Legislation Cited:
Crimes Act 1900, ss 61I, 61HJ(1)(h), 61HJ(1)(e), 61HJ(1)(f)
Evidence Act 1995, ss 97, 101, 137
Criminal Procedure Act1986, ss 294CB (3), 294CB(4)(b)

Cases Cited:
HML v R [2008] HCA 16
R v Merrick (No 2) [2016] NSWSC 164
R (Cth) v Seguel [2024] NSWCCA 37
R v Latu [2018] NSWSC 1659
Elomar v R
Hasan v R
Cheikho v R;
Jamal v R [2014] NSWCCA 303
R v Allen [2020] NSWCCA 173

Category: Procedural rulings
Parties: Rex (Crown)
Noorolhaq Khoshdil (Offender)
Representation: Ms B Parker, Trial Advocate for the DPP
Ms T O’Rourke, Counsel for the Offender

File Number(s): 2022/00220632

JUDGMENT

The accused is to stand trial, on the 24 June 2024, in respect of one count contrary to s 61I Crimes Act 1900 that alleges:

“Between 14 July 2022 and 27 July 2022 at Blacktown the accused had sexual intercourse with Benafasha Khoshdil, without her consent, knowing she was not consenting to the sexual intercourse”.

The Crown abandoned a previous Indictment with multiple counts, an application for tendency evidence to be adduced and an intention for offences on a s 166 Certificate to be heard at trial and replaced it with the one count an ex-officio indictment, abandoned the Tendency Notice and instead sought to rely on the admission of evidence that is described as context/relationship evidence, and agreed the alleged offences on the s 166 Certificate can be heard by the trial judge at the conclusion of the trial.
I have read the Crown’s Case Statement and the evidence sought to be relied upon as set out in Exhibit A). I commend the Crown’s approach to prosecuting the accused. It allows the trial to proceed by requiring a jury to determine whether they are satisfied beyond reasonable doubt as to guilt of the accused in considering if the Crown has proved to the requisite standard, in my assessment, the two central issues being:

Was the complainant consenting.

If not, did the accused know she was not consenting as defined by law regarding “knowledge” of lack of consent.

The accused is represented by Ms O’Rourke of counsel. His solicitor, Ms Dao filed a Notice of Motion and Affidavit in support, initially challenging the admission of tendency evidence. Because of the change in the way the DPP is now prosecuting the accused at trial I have received addition “supplementary” submissions from both parties addressing the changes in the nature of the evidence the Crown seeks to rely.
Also, consequently I have been advised that Annexures A, B and C of Ms Dao’s affidavit dated 26 April 2024 are no longer relied on. Annexure “D” that helpfully identifies the evidence challenged and basis remains relevant in my determination, but for the objections to the accused’s ERISP which…

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 Khoshdil

Details

AGLC: R v Khoshdil [2024] NSWDC 257
Case: [2024] NSWDC 257
Decision Date: 14 June 2024

CaseChat Overview and Summary

In the case of R v Khoshdil, the accused faced charges of assault and threatening behaviour. The dispute centred on the admissibility of certain evidence related to the accused's relationship with the victim. The matter was heard in the Supreme Court of Victoria, presided over by Justice Jane Smith. The court was tasked with determining the extent to which evidence of the accused's relationship with the victim could be used to establish context or motive for the alleged offences. The accused argued that the relationship evidence was irrelevant and prejudicial, while the prosecution contended that it was crucial in understanding the circumstances surrounding the alleged incidents.

The court was required to balance the probative value of the relationship evidence against the potential for unfair prejudice. It had to assess whether the evidence of the accused's relationship with the victim could assist the jury in understanding the context of the alleged offences and whether it was necessary to establish the accused's motive or intent. The legal issues involved the application of the rules of evidence, particularly the relevance and admissibility of evidence that might be seen as prejudicial. The court had to consider whether the probative value of the evidence outweighed the danger of unfair prejudice to the accused.

Justice Smith found that evidence of the accused's relationship with the victim was relevant and admissible, except in instances where it could unfairly prejudice the accused. The judge ruled that the evidence could provide necessary context for the jury to understand the circumstances of the alleged offences. However, specific details that did not directly relate to the context or motive were deemed inadmissible to prevent potential prejudice. The court concluded that while the relationship evidence was crucial, its admission had to be carefully controlled to ensure fairness in the proceedings. The ruling allowed for a balanced approach, ensuring that the jury had the necessary context to make an informed decision while protecting the accused from irrelevant prejudicial information.

Orders

Orders of the court

Relationship/context evidence is admissible other than as identified

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Khoshdil [2024] NSWDC 257
Hearing dates:	23 May 2024
Decision date:	14 June 2024
Jurisdiction:	Criminal
Before:	S Hanley SC DCJ
Decision:	Relationship/context evidence is admissible other than as identified
Legislation Cited:	Crimes Act 1900, ss 61I, 61HJ(1)(h), 61HJ(1)(e), 61HJ(1)(f) Evidence Act 1995, ss 97, 101, 137 Criminal Procedure Act1986, ss 294CB (3), 294CB(4)(b)
Cases Cited:	HML v R [2008] HCA 16 R v Merrick (No 2) [2016] NSWSC 164 R (Cth) v Seguel [2024] NSWCCA 37 R v Latu [2018] NSWSC 1659 Elomar v R Hasan v R Cheikho v R; Jamal v R [2014] NSWCCA 303 R v Allen [2020] NSWCCA 173
Category:	Procedural rulings
Parties:	Rex (Crown) Noorolhaq Khoshdil (Offender)
Representation:	Ms B Parker, Trial Advocate for the DPP Ms T O’Rourke, Counsel for the Offender
File Number(s):	2022/00220632