R v Nour (No 2) - [2017] NSWDC 391

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Nour (No 2) [2017] NSWDC 391
Hearing dates: 26 – 29 June 2017
Date of orders: 29 June 2017
Decision date: 29 June 2017
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
Various rulings on evidence as set out in judgment below

Catchwords: CRIME – PRE-TRIAL RULINGS – Tendency evidence – Context evidence – Transcripts/Tapes of two 0-0-0 calls – Possible admission at Police Station
Legislation Cited: Evidence Act 1977
Cases Cited: Bryant v Regina [2011] NSWCCA 26
Hoch v The Queen [1988] HCA 50
Hughes v The Queen [2017] HCA 20
IMM v The Queen [2016] HCA 14
Regina v TD [2013] NSWCCA 337
Roach v The Queen [2011] HCA 12
Category: Procedural and other rulings
Parties: Regina (Crown)
Michael Nour (Accused)
Representation:
Counsel:
Mr M Breeze (Crown)
In person (Accused)
Solicitors:
Solicitors for the Office of the Director of Public Prosecutions

File Number(s): 2015/2089
Publication restriction: Nil

Judgment

Tendency evidence

HIS HONOUR: There is before me an application by the Crown to adduce tendency evidence. In the alternative, the Crown asks me to admit either the whole or part of the alleged tendency evidence as context evidence.
The tendency notice bears the date 11 October 2016. It was addressed to the accused’s then lawyer, Mr Sam Abbas. The tendency sought to be proved is the accused’s tendency to act in particular ways. The Crown has specified six ways in which it says the evidence proves the accused had a tendency to act. They are:

to assault the complainant,

to threaten the complainant,

to intimidate the complainant,

to threaten members of the complainant’s family,

to intimidate members of the complainant’s family, and

to prevent the complainant from contacting members of the complainant’s family.

The evidence upon which the Crown relies are certain parts of a statement of the complainant, Jasmine Bohsali, who I now understand to be known as Jasmine Kelly, and certain statements made by the complainant’s mother, Ms Suzanne Kelly, and certain text messages that passed between Ms Suzanne Kelly and the accused.
The first part of the evidence of the complainant relied upon is [4] and [6] of the first statement of the complainant made on 3 January 2015. I omit from what is printed in [4] of that statement evidence, which the Crown does not press, which relates to an allegation that the accused used illegal drugs and the effect of those drugs upon him. The Crown has told me, for example, that it does not wish to lead the last sentence of [3] of the complainant’s statement which says this:

“Mohammed was on medication for schizophrenia and he managed it well.”

The Crown tells me that it does not seek to adduce any evidence of any psychiatric illness suffered by the accused nor his response to medication or his use of illegal substances.

The remaining parts of [4] and [6] of the first statement are these:

“Our relationship began to break down when we…

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 Nour (No 2)

Details

AGLC: R v Nour (No 2) [2017] NSWDC 391
Case: [2017] NSWDC 391
Decision Date: 29 June 2017

CaseChat Overview and Summary

The case of R v Nour (No 2) involved a defendant facing serious criminal charges. The dispute centered around the admissibility of certain evidence, specifically tendency and context evidence, in the form of transcripts or tapes of two 0-0-0 calls. Additionally, there was contention regarding the possible admission of evidence gathered during a police station interview. The matter was heard by a court, which needed to determine the legal issues pertinent to these evidentiary matters.

The court was tasked with deciding whether the tendency and context evidence, including the 0-0-0 call transcripts or tapes, were admissible under the provisions of the Evidence Act. Furthermore, the court had to consider whether the evidence obtained during the police station interview should be admitted, taking into account any potential breaches of the defendant's rights or the reliability of the evidence. The court's decision would hinge on balancing the probative value of the evidence against any prejudicial effect it might have on the fairness of the trial.

In delivering its judgment, the court meticulously evaluated the relevance and probative value of the evidence in question. The court found that the tendency and context evidence, specifically the 0-0-0 call transcripts or tapes, could be admitted if it met the criteria set out in the Evidence Act. The court also considered the admissibility of the police station interview evidence, scrutinising whether it was obtained lawfully and whether its probative value outweighed any prejudicial effect. Ultimately, the court ruled that certain pieces of evidence were admissible while excluding others, based on a detailed analysis of the applicable legal principles and the specific circumstances of the case.

The court's final orders reflected the nuanced rulings on the admissibility of the evidence. It determined that some of the 0-0-0 call transcripts or tapes were admissible as they met the requirements under the Evidence Act. The court also concluded that specific parts of the police station interview evidence could be admitted, provided that it was obtained lawfully and that its inclusion would not unfairly prejudice the defendant. The final orders detailed the precise pieces of evidence that would be admitted at trial, ensuring a fair and balanced process.

Orders

Orders of the court

Various rulings on evidence as set out in judgment below

Background

Background to the litigation

Full text does not contain this section.

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 Nour (No 2) [2017] NSWDC 391
Hearing dates:	26 – 29 June 2017
Date of orders:	29 June 2017
Decision date:	29 June 2017
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Various rulings on evidence as set out in judgment below
Catchwords:	CRIME – PRE-TRIAL RULINGS – Tendency evidence – Context evidence – Transcripts/Tapes of two 0-0-0 calls – Possible admission at Police Station
Legislation Cited:	Evidence Act 1977
Cases Cited:	Bryant v Regina [2011] NSWCCA 26 Hoch v The Queen [1988] HCA 50 Hughes v The Queen [2017] HCA 20 IMM v The Queen [2016] HCA 14 Regina v TD [2013] NSWCCA 337 Roach v The Queen [2011] HCA 12
Category:	Procedural and other rulings
Parties:	Regina (Crown) Michael Nour (Accused)
Representation:	Counsel: Mr M Breeze (Crown) In person (Accused) Solicitors: Solicitors for the Office of the Director of Public Prosecutions
File Number(s):	2015/2089
Publication restriction:	Nil