R v Khoshdil - [2024] NSWDC 257

No judgment structure available for this case.

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 is not being tendered by the Crown at trial.
It is incontrovertible that the accused and complainant were at the relevant time husband and wife having married in their native country of Afghanistan in about 2014. They have 2 children. They travelled to Australia as refugees, arriving on the 24 June 2021 and initially resided in South Australia and later in the same year in Blacktown.

The Crown Case - Relationship/Context Evidence

It is the Crown case that evidence of the relationship between the accused and complainant in Afghanistan, South Australia and New South Wales should be adduced at the accused trial to assist the jury in determining the 2 central issues I have identified above.
The Crown relies primarily upon the complainant’s three statements, and the affidavit of the complainant, dated 9 August 2021, in which she provides a detailed outline of the accused’s physical, sexual and psychological abuse and controlling behaviour (see Crown Bundle).
The Crown relies upon relationship evidence, for the purpose of framing the allegations within their accurate context and because the evidence it submits is relevant to the accused’s ongoing state of mind and attitude towards the complainant.
The Crown submits that proof of the relationship evidence and state of mind evidence is relevant to the determination of the following facts in issue in the trial:

Whether the accused had sexual intercourse with the complainant in the manner alleged by her on the occasion represented by Count 1.

Whether the complainant’s consent was vitiated on the basis that she participated in the sexual activity because she was overborne by the abuse of her relationship of trust and/or dependence with the accused (s 61HJ(1)(h) Crimes Act 1900).

Whether the accused was aware that the complainant’s participation in the sexual activity was neither free nor voluntary because she was overborne by his abuse of their relationship of trust and/or dependence (s 61HJ(1)(h) Crimes Act 1900).

Whether the complainant’s consent was vitiated on the basis that she participated in the sexual activity because of force, fear of force or fear of serious harm of any kind to her by the accused (s 61HJ(1)(e) Crimes Act 1900).

Whether the accused was aware that the complainant’s participation in the sexual activity was neither free nor voluntary because her participation was due to force, fear of force or fear of serious harm of any kind felt by the complainant with respect to the accused.

Whether the complainant’s consent was vitiated on the basis that she participated in the sexual activity because of coercion or intimidation by the accused (s 61HJ(1)(f) Crimes Act 1900).

Whether the accused was aware the complainant’s participation in the sexual activity was neither free nor voluntary because her participation was due to coercion or intimidation by the accused.

Whether the complainant’s delay in disclosing the allegations adversely affects her credibility with respect to those allegations or, conversely, is explicable by the accused’s coercive and controlling behaviour towards the complainant and to inflict psychological abuse upon the complainant.

The Crown relies on s 61HJ(1)(e) and s 61HJ(1)(f) Crimes Act that provide as follows:

(1)   A person does not consent to a sexual activity if -
…
(e)   the person participates in the sexual activity because of force, fear of force or fear of serious harm of any kind to the person, another person, an animal or property, regardless of—
(i)   when the force or the conduct giving rise to the fear occurs, or
(ii)   whether it occurs as a single instance or as part of an ongoing pattern, or

(f)   the person participates in the sexual activity because of coercion, blackmail or intimidation, regardless of—
(i)   when the coercion, blackmail or intimidation occurs, or
(ii)   whether it occurs as a single instance or as part of an ongoing pattern

The ongoing pattern of force, threats of force, coercion, control and intimidation outlined by the complainant and her Settlement Services International, Case Manager, Ms Aslami, is relevant to proof that the complainant did not consent.

THE EVIDENCE

The Complainant

The Crown relies on the evidence of the complainant’s claims in which she provides a detailed outline of the accused’s physical, sexual, and psychological abuse and controlling behaviour during their marriage.
This evidence is of the accused’s frequent demands that the complainant engage in sexual intercourse with him, as identified by the following allegations:

Forcing sexual intercourse upon the complainant even when she was menstruating or told him she was in too much pain or was asleep in bed with her children or did not feel like having sexual intercourse.

Constantly demanding that the complainant engage in anal sex with him, even though she told him it caused her pain, (that she had haemorrhoids and cuts) and that she did not want to.

Sending the complainant links to pornography even though she told him she didn’t like pornography.

Insisting that the complainant contact another woman to join them for a threesome, even though she did not want to, and this was contrary to her religion.

Forcefully imposing penile-vaginal sexual intercourse upon the complainant daily.

Forcefully imposing penile-anal sexual intercourse upon the complainant daily.

Telling the complainant (after she expresses a desire not to have sex) “Now I have the desire for anal sex. You have to give it to me. You are my wife. If you are not giving it to me who else is going to give it to me” and “There is no other option. I want it and I get it. I love to have anal sex and you have to give it”; and

Persisting with sexual intercourse even when the complainant was visibly crying and in pain.

The complainant’s evidence regarding the accused inflicting physical violence upon the complainant, includes an assertion that he slapped her to the face, grabbed her by the arm, spat in her face, hit her across the face and tried to strangle her. This evidence includes an allegation the accused previously engaged in domestic violent behaviour before they moved from Afghanistan to Australia.
The complainant’s evidence regarding the accused’s alleged controlling behaviour, includes:

Using his mobile phone to record the complainant’s movements when he wasn’t at home.

Accusing the complainant of having relationships with other men.

Telling the complainant that he would not divorce her but would bring a new wife to Australia.

Sending the complainant text messages and emails if she didn’t answer his calls while she was staying in a refuge; and

Not allowing the complainant to have an IUD inserted because he wanted her to have more children.

Benafsha Aslami

The Crown also relies upon disclosures the complainant made to her case manager, Ms Aslami, including:

In June 2022 that the accused was threatening to tell everyone that she was being unfaithful, and that her children would be taken away from her if she disclosed personal information to police.

The accused constantly reminded her that the money she received from the Government for her children did not belong to her but was his.

The accused told her that the only way she could spend money is if she got a job.

The accused restricting what she could buy for the household and her children.

The accused getting angry when her ankles were showing.

The accused not allowing her to wear makeup.

That when she dropped her son to school, the accused insisted she always remain on the phone with him.

When the accused went out, he used his phone to record any conversations she may have.

The accused forced her to have sexual intercourse with him four to five times per night.

The accused would wake her up when she was sleeping and demanded she have sex with him.

She told the accused she was in pain but that he still forced her to have sex against her will.

If she did not give in, the accused told her it’s her duty as a wife, and he did not care how she felt; and

The accused told her that if she did not want to have sexual intercourse, he will pray she got cancer.

Crown’s Submissions

The Crown submits the case law identifies the basis for the admissibility of this category of evidence and these are present and relevant in permitting the proposed evidence available from the complainant to be adduced at the accused’s trial. In the context of the allegation and issues at the trial the Crown submits it is relevant and admissible on the following basis.
The complainant’s evidence of the nature of their relationship, including the accused’s coercive control, emotional and psychological abuse, physical abuse, and sexual abuse, frames the complainant’s allegations within their true context.
Divorced from their true context, the complainant’s allegations will appear to have occurred ‘out of the blue’ within an otherwise harmonious relationship. Depriving the allegations of their true context would suggest that the allegations are implausible, aberrant, and inconsistent with the true nature of the relationship.
A jury is less likely to accept (beyond reasonable doubt) that the accused imposed sexual intercourse upon his wife, if they are under the impression that this is alleged to have occurred within a longstanding relationship that was free of hostility and abuse.
The Crown submits the proposed evidence identifies the true nature of the complainant’s relationship with the accused and importantly places the allegations within an accurate context of his behaviour towards the complainant of which the alleged offence is a further and continuing example and is relevant to explain:

why the complainant remained with the accused throughout the years of the relationship.

the complainant’s delay in reporting the offending.

how the accused’s charged conduct is consistent with the conduct he engaged in throughout the duration of the relationship and the attitude he displayed towards the complainant throughout the relationship.

why the complainant might acquiesce or cease resisting the sexual intercourse once it became clear to her that the accused was persisting despite her protests, and she had been overborne by his abuse, coercion, control, and intimidation.

why the complainant would not freely and voluntarily consent to sexual intercourse with the accused, considering the hostile atmosphere of the relationship.

why the accused would be aware that the complainant would not freely or voluntarily agree to have sexual intercourse with him, as the intercourse is occurring within an atmosphere of hostility and abuse. It informs the jury of the accused’s state of mind and attitude throughout the course of the relationship that explains his commission of the alleged offence.

The Crown also submit it is relevant in proving the accused’s state of mind at the time of the alleged offence, as to his “knowledge” of whether the complainant was consenting in that the accused would be aware the complainant would submit to him when he forced her to have sex with him
The evidence also informs the jury why the complainant may appear to have been compliant and consenting in the sexual intercourse, as her behaviour should be considered in the context of the accused’s behaviour towards her generally during the relationship but in particular in respect to their sexual “relationship”.
In this context it explains away any belief (in the community) of the need for a complainant to physically demonstrate a lack of consent to an accused.
In the context of the relationship the evidence is also admissible pursuant to sections 61HJ (1) (e), (f), and (h) that permit evidence of coercion, being an ongoing pattern of behaviour, within the relationship. In the context of the allegation the Crown submit this is important in understanding the complainant’s apparent compliance in the context of a relationship whereby the accused had sought to control her behaviour to a significant degree.

Defence Submissions

Ms O’Rourke submits the evidence should be excluded because:

There are no allegations by the complainant of assaults, violence or threats accompanying or facilitating the alleged count of sexual intercourse without consent. It is submitted that the alleged offending stands in contrast to much of the alleged uncharged “coercive, controlling or violent” behaviour alleged against the accused.

It cannot be said, in light of the alleged facts of the offences sought to be proved in the Crown case, that the alleged behaviour of the accused shows the continuing nature of the conduct, explains the offences charged or that they could be said to be acts so closely and inextricably mixed up with the history of the relationship as alleged to satisfy the Court as to their admissibility as context evidence.

The Crown cannot simply rely upon all allegations made by a complainant, irrespective of whether the factual allegations of the count on the indictment concern uncharged acts or are in some way proximate to the uncharged acts, as is sought to be done in this matter.

The Crown have failed to clearly articulation the precise manner in which the evidence is relevant, and it is not enough to say the evidence shows the background to the alleged offence.

The uncharged acts of “violence” relied on by the Crown were alleged to have occurred in August of 2021, 11 months before the alleged offences in July 2022. These allegations concerned the accused pulling the complainant towards him by the arm, slapping her across the face with an open hand, standing over her and spitting in her face.

The uncharged acts are also in the past from the when the couple lived in Afghanistan including an allegation the accused tried to strange the complainant and hit her across the face. It does not appear that any of these alleged events of domestic violence are said to have occurred in the context of sexual intercourse between the complainant and the accused.

Section 61HJ(e) of the Crimes Act 1900 (NSW) is not applicable because of the remoteness of the alleged force, fear of force or fear of serious harm results in its probative value being outweighed by the risk of unfair prejudice to the accused.

The acts of domestic violence sought to be admitted cannot be said to have a high level of probative value, as contended for by the Crown, in light of the temporal and situational disconnect with the alleged offence.

There is no proximity, nexus or causation between the alleged acts of violence and the alleged offence of sexual intercourse.

Will result in the jury inappropriately engaging in tendency or coincidence reasoning for which no adequate judicial direction can redress.

Will raise bad character of the accused.

Ms O’Rourke submits the “coercion and control” evidence and or the “violence” evidence should when applying the considerations in s 137 of the Evidence Act result in the exclusion of the proposed evidence because its probative value would be outweighed by the unfair prejudice to the accused for the reasons as set out above and in [31] of her written submissions MFI 1. She ultimately submits because the evidence will inevitably be prejudicial, great care must be exercised at this point in the trial.
The defence have also identified objections to the evidence as to its relevance as set out in Annexure “D” of Ms Dao’s affidavit.

FINDINGS

In addition to taking into account the very helpful and extensive submissions of the parties I have also had reference to the identification of admissibility of this relationship evidence as set out in HML v R [2008] HCA 16 in the context of the accused’s trial, and that it is not or sought to be relied upon as tendency evidence.
In the context of this trial, I have taken into account its relevance:

In affecting the plausibility of other evidence or to assess the credibility and coherence of the complainant’s evidence.

As providing an essential background against which the evidence of the complainant and the accused necessarily falls to be evaluated, to show the continuing nature of the conduct and to explain the offences charged

To overcome a false impression that the event was an isolated one, that the offence happened “out of the blue”, where the acts are closely and inextricably mixed up with the history of the offence.

To ensure that the jury are not required to decide issues in a vacuum.

I have also considered those judgments of the Supreme Court of NSW referred to me by Ms Parker, Crown Advocate, summarising the superior courts decisions identifying the admissibility of relationship evidence particularly when it goes to throwing light upon the nature of the relationship between the accused the complainant. (Wilson J in R v Merrick (No 2) [2016] NSWSC 164 and R (Cth) v Seguel [2024] NSWCCA 37; and Lonergan J R v Latu [2018] NSWSC 1659).
In the context of the alleged relationship behaviour in this matter I have also considered that evidence’s admissibility pursuant to ss 61HJ (1) (e), (f), and (h) Crimes Act 1900).

I am satisfied the evidence has been sufficiently particularised by reference to the above sections of the Crimes Act (and intention of the Parliament) and its purpose and use identified as relevant in assisting a jury to determine the two essential “facts in issue”. The sections contemplate evidence that displays a “ongoing pattern of behaviour” that vitiates the consent of a complainant in allegations of sexual offending. It is therefore admissible as it can establish:

The accused’s consistent disregard for and indifference to the complainant’s welfare and his persistent and acute disdain towards the complainant that reflects a sense of proprietorship over the complainant and a feeling of entitlement to sexual activity.

These states of mind continued throughout the accused and complainant’s relationship and were present at the time of the commission of the alleged offence.

That the accused did not care if (or was indifferent to whether) the complainant was freely and voluntarily agreeing to the sexual intercourse, which is consistent with the accused’s continuing state of mind with respect to the complainant, as described by her throughout her statements.

The accused’s ongoing attitude towards the complainant as relevant to the likelihood he behaved in the manner alleged by the complainant, and also relevant as to whether the accused would desist from sexual intercourse in the face of the complainant’s protests.

The accused adopted an ongoing hostile, aggressive, controlling, possessive and entitled attitude towards the complainant consistent with the nature of the allegations which underpin the occasions when the accused forced the complainant to have sex with him, despite her protestations.

An ongoing, persistent attitude of resentment, disdain, aggression and hostility towards the complainant and a lack of concern for her welfare as relevant to proof that the accused knew that the complainant was not consenting (but did not care), or simply declined to turn his mind to whether she was consenting (because this consideration did not concern him, as his focus was on sexual gratification with a disregard for her consent).

I am also satisfied the Crown has established the evidence is admissible as an exception to s 294CB (3) Criminal Procedure Act 1986, in that s 294CB(4)(b) provides the basis for subsection (3) not applying. I am satisfied, in the context of the allegations, the evidence relates to a relationship between the accused person and the complainant that was existing or recent at the time of the commission of the alleged prescribed sexual offence. In considering its admissibility pursuant to this section I am satisfied, based on the complainant’s evidence if accepted, it existed throughout the relationship and up and to including the alleged offence.
I am satisfied the probative value of the evidence outweighs any distress, humiliation, or embarrassment that the complainant might suffer because of its admission.
I am satisfied the admission of relationship evidence taking into account the application of s 294CB can be considered, in the circumstances of the alleged previous “ongoing pattern of” behaviour of an accused in a relationship with a complainant, with reference to ss 61HJ (1) (e) and (f) of the Act. It appears these provisions may allow the inclusion of evidence that was previously excluded by s 294CB, in circumstances such as exist in the allegations made by the complainant of the accused’s behaviour throughout their relationship to establish a “pattern of behaviour”.
In this respect, despite the restriction of admitting evidence of acts and experience that fall under the umbrella of s 294CB of the Act the complainant’s evidence regarding the history of the accused’s violent and coercive behaviour to, and non-consensual sexual intercourse with her during the relationship, the evidence is admissible (in the circumstances of this case) pursuant to the above referred to sections of the Act.
I have considered the intention of the Parliament in enacting these sections as identified by the then Attorney-General Mark Speakman SC in the extract below from the second reading speech introducing the Crimes Legislation Amendment (Sexual Consent Reforms) Bill 2021

Fifth, under proposed new section 61HJ (1) (e), there is no consent if the person participates because of force, fear of force or fear of serious harm of any kind to the person, another person, an animal or property. This is regardless of when this conduct occurs or whether it occurs in a single instance or as part of an ongoing pattern. The adjective "serious" has been added to the drafting, which the Law Reform Commission proposed, to ensure the appropriate scope of application of the provision and the avoidance of overreach. Ultimately, the scope of conduct captured will depend on the circumstances and whether the person has consented "because of" that fear. The phrase "if the person participates because of" means it must be proven that the accused's behaviour was a substantial cause of the victim submitting to the sexual act. There must be some force or conduct engaged in by the accused that gives rise to the "fear of harm"; this latter requirement is implicit in the use of the term "force or conduct giving rise to the fear" in subsection (e) (i). The new section is not engaged by reason only of a passive fear existing in the mind of the complainant.
Sixth, proposed new section 61HJ (1) (f) of the Crimes Act provides that a person does not consent when the person participates because of coercion, blackmail, or intimidation, regardless of when this occurs or whether it occurs in a single instance or as part of an ongoing pattern. Intimidation and coercion are already covered under the existing consent provision, so these concepts are not new in the context of sexual consent and non-consent. Coercion, blackmail and intimidation are also terms that are well understood at law. The Law Reform Commission expressly stated that these terms would be "broad enough to cover a range of behaviours including, for example verbal aggression, begging and nagging, physical persistence, social pressuring, and emotional manipulation".
Eighth, under proposed new section 61HJ (1) (h), there is no consent if the person participates because they are overborne by abuse of a relationship of authority, trust or dependence.
This was intended to capture conduct which may amount to coercive control, especially in the context of domestic and family violence as this type of conduct can be just as oppressive as physical violence or serious threats. Contrary to one possible reading of the Law Reform Commission's comments, for the purposes of this bill the New South Wales Government does not intend that, for example, mere begging and nagging, given the ordinary meaning of those words, would reach the threshold of coercion, blackmail or intimidation, without more. It is not the intent of the provision to criminalise conduct that does not amount to a serious impingement on a person's right to freely and voluntarily agree, or not agree, to participate in sexual activity.

I am satisfied any potential restriction upon the admissibility of relationship evidence that could fall within the behaviour of prior sexual experience may be removed, in the appropriate circumstances, by the application of ss 61HJ (1) (e), (f) and (h) of the Act.
I am satisfied the conduct of the accused as alleged by the complainant in respect of their relationship she claims is capable of being used by a jury in determining whether her “consent” was vitiated by the fear of harm she felt because of violent and intimidating conduct by the accused throughout the years of their relationship.
The evidence if accepted by a jury can establish the accused applied controlling behaviour towards the complainant and is relevant to prove the charged act because it reveals an attitude of possessiveness, proprietorship and entitlement towards the complainant. This behaviour is also relevant as it shows the control the accused exerted over the complainant, emboldening him to commit the offence, as well as the impact on the complainant, where she is worn down and submissive.
The behaviour alleged by the complainant against the accused not only frames and contextualises the charged conduct, but also makes it more likely that the accused behaved in the manner described by the complainant.
I accept the Crown’s contention the evidence can establish the accused inflicted physical violence upon the complainant including but not limited to slapping the complainant to her face, grabbing her by the arm, spitting in her face and attempting to strangle her and this behaviour further reveals a disregard for the complainant’s physical welfare, consistent with the allegations underpinning the charge on the indictment. These were examples of an “ongoing pattern” of violent behaviour that included the inherent violence in his insistent she have sexual intercourse with him throughout their relationship.
I am satisfied this evidence is also relevant in proving the central “facts in issue” and in particular can explain the complainant’s apparent consent/compliance and the accused’s knowledge or this or his complete disregard as to whether she was a consensual participant in the sexual act.
The requirement that the acts contemplated in s 294CB(4)(b) be proximate to the act(s) alleged in the offence as a prerequisite for admissibility is removed when read in combination with ss 61HJ (1) (e) and (f) of the Act. As indicated in the above second reading speech the behaviour of continued coercion can be considered as occurring throughout the relationship.
I am satisfied that if Ms O’Rourke’s submission the proposed evidence lacked sufficient proximity to the alleged offence is correct and the evidence would not be admissible pursuant to s 294CB(3) the evidence of the nature of the relationship and its impact upon the complainant would still be admissible pursuant to ss 61HJ (1) (e) and (f).
Ms O’Rourke has identified a number of particular complaints she says should be excluded. This includes the evidence referred to in paragraph 18 (Crown Case Statement) concerning the accused’s requests for sexual intercourse even when the complainant is menstruating. Ms O’Rourke submits this should be excluded as there is no allegation the complainant was menstruating at the time of the sexual intercourse alleged by the complainant subject of the Count on the Indictment. I considered whether this evidence was potentially unfairly prejudicial to the accused and outweighed any probative value. However, I am satisfied whilst Ms O’Rourke’s submission the evidence is prejudicial is correct, the alleged behaviour is part of the coercive nature of the accused’s controlling of the complainant and reaffirms his disregard for her wishes to satisfy his desire.
I am satisfied the proposed evidence is also capable of proving the accused’s continuing state of mind that is distinct from a tendency as considered in Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303. (see also R (Cth) v Seguel [2024] NSWCCA 37). In the context of the alleged offence this evidence goes to the thinking of the accused in the commission of the offence, a consideration in respect of his knowledge of the complainant’s lack of consent to the sexual intercourse. It is therefore not tendency evidence.
I do not accept Ms O’Rourke’s submission that the admissibility the relationship evidence will result in a mini trial within the trial. The proposed evidence goes to the heart of the central facts in issue and will need to be addressed by the defence as is similarly the case in trials where evidence of tendency or coincidence is admitted. I am not satisfied it places an unfair burden on the accused or the jury.
In considering the defence concern that the admission of this evidence will raise the bad character of the accused I take into account the Parliament in enacting the referred to amendments to the Crimes Act would have appreciated this was an inherent consequence of such provisions but accepted it was an acceptable consequence in ensuring juries were fully aware of context or relationship within which they were allegedly committed.
Additionally, I am satisfied the evidence is relevant in explaining the complainant’s delay in complaint irrespective of the direction required by ss 292A – 292E and 294.

Re Section 137 Evidence Act 1995

I have considered the parties submissions. I accept the admission of this evidence is inherently prejudicial to the accused. However, I am not satisfied it is unfairly prejudicial to the accused by reason of a risk the jury would use the evidence improperly in some unfair way.
I do not accept Ms O’Rourke’s submissions to the contrary and that no adequate direction can be given by the Trial Judge to the jury. Directions addressing the appropriate and limits on the permissible use of this category of evidence are regularly given by judges of this court to juries.
I am satisfied a jury can be properly directed and comply with such directions and only apply the evidence in the manner they are advised is permissible.
In making that assessment I have taken into account the observations of Button J in R v Allen [2020] NSWCCA 173 at [150] – [160] as referred to me by Ms O’Rourke, concerning the expectation or not of jurors complying with the Trial Judge’s directions. However, the likelihood of a jury not complying with strong and clear judicial directions, dependent upon the nature of the evidence, defies prediction, particular in respect of this evidence which is sadly not uncommon in allegations of this kind claimed to have been committed in the context of a marriage/intimate relationship.
I have taken into account Button J’s concerns when considering whether a jury would use the evidence impermissibly. I am not satisfied those concerns would result in a finding the evidence should be excluded in my discretion that requires a finding the probative value of the evidence outweighs its prejudicial effect (s 137) or may outweigh its prejudicial effect (s 134).

Relevance and Probity - Findings

Ms O’Rourke has also objected to some of the proposed evidence on the basis that it is not relevant even if I should allow the relationship evidence.
I am satisfied the following evidence is irrelevant, has little or no probity and should be excluded:

The consumption of alcohol by the accused as referred to in paragraph 6 of the Crown Case Statement. There is no allegation by the complainant that the accused was intoxicated during the commission of the alleged offences and there is no relevance to the accused’s alcohol consumption.

The evidence of the accused smoking cannabis in Afghanistan in paragraph 8 of the Crown Case Statement. Again, there is no allegation by the complainant that the accused was intoxicated by any drugs during the commission of the alleged offences or had consumed marijuana proximate to the alleged offences.

The evidence concerning the accused’s mental health, in paragraphs 8 and 10 of the Crown Case Statement. There is no evidence from the complainant that the accused’s mental health had any nexus with the alleged offending.

The pornography evidence as referred to in paragraph 15 of the Crown Case Statement. There is no allegation of any use of pornography in the sexual intercourse alleged by the complainant said to amount to the offences on the indictment. Accordingly, any evidence relating to the offender’s electronic devices is not relevant.

The evidence concerning a domestic violence risk assessment of the complainant, preparation of a Critical Incident Report and consultation with a Domestic Violence Case Specialist, as referred to in paragraph 19 of the Crown Case Statement is objected to, pursuant to s 137. I am satisfied this evidence is not relevant to the allegation and is more (unfairly) prejudicial than probative.

In respect of the defence objection to the evidence concerning the complainant allegedly having made 8 to 10 audio recordings of the accused “trying to and demanding to have sexual intercourse with her”, as referred to in paragraph 66 of the Crown Case Statement, I will exclude it as requested. I accept it appears to be incapable of corroboration and therefore potentially unfairly prejudicial however, I assumed the defence may have required it to be admitted providing a basis for attacking the complainant’s credibility.

Benafsha ASLAMI Statement

In respect of the proposed evidence of this witness, I disallow:

Paragraph [10] on the basis its probative value is negligible and outweighs its prejudicial affect.

Paragraph [11] and [15] based on relevance and their probative value is negligible and outweighs its prejudicial affect.

The last sentence in Paragraph [15] commencing “I was shown…” based on relevance and its probative value is negligible and outweighs its prejudicial affect.

Paragraph [20] on the basis it is unqualified opinion evidence.

In taking into account all challenges to the evidence particularised in Annexure “D” I have identified those parts to be excluded on the attached schedule.
The evidence is otherwise admissible.

Orders

The evidence is admissible other than as identified in my judgment and as identified in the attached noted schedule extract from Annexure “D” (Ms Dao’s affidavit).
I confirm the trial date.

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Annexure to Judgment (14 June 2024) re Evidence Exclusions

Crown Case Statement