R v Saweqa

[2002] VSC 288

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1490 of 2001

THE QUEEN

v

TOORILAY SAWEQA

---

JUDGE:	FLATMAN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 February 2002
DATE OF RULING:	5 February 2002
CASE MAY BE CITED AS:	R v Saweqa
MEDIUM NEUTRAL CITATION:	[2002] VSC 288

---

CRIMINAL LAW RULING:          Admissibility of evidence relating to prior assault

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B. Kayser	Kay Robertson, Solicitor for Public Prosecutions
For the Defendant	Ms J. Sutherland	Victoria Legal Aid

HIS HONOUR:

1. This is an application by Ms Sutherland, Counsel for the accused, Toorialay Saweqa, seeking to prevent the Crown leading evidence from the accused’s daughter, Paymana Saweqa relating to an aspect of her evidence involving an incident that occurred on 23 July 1999.  The incident involved an altercation between the accused and his wife, Roia Saweqa, where the accused also assaulted and threatened to kill Paymana Saweqa when she tried to help her mother.

1. The relevant passage is contained in the fourth paragraph of the statement of Paymana Saweqa dated 24 July 1999.  Ms Sutherland argues that the evidence does not bear strictly on the relationship between the accused and the victim, Roia Saweqa; alternatively, it is so prejudicial in the sense of bad character or propensity that I should exercise my discretion to exclude it.

1. Mr Kayser for the Crown argues that the incident occurred during an earlier assault by the accused upon his wife and therefore impacts upon the relationship between them.

1. While all the parties agree that the question of admissibility depends upon the relationship nexus – and the cases specifically referred to were R v Wilson (1970) 123 CLR 334; R v Anderson [2000] 1 VR 1; and R v Loguancio [2000] 1 VR 235 – it seems to me that the fundamental principle is correct, that, in order to be admissible, it must bear on an issue in the trial and, in this case, the relationship between the accused and his wife is such an issue.

1. This evidence however, to my mind, points to an attitude held by the accused towards other family members who might stand in his way or who may interfere, in the sense, that it reflects his attitude of domination towards his family.  It also reflects upon his relationship with his wife, although I am not sure that it strictly impacts upon his intent towards her.

1. In the circumstances, I am satisfied that the evidence should be excluded, with the caveat that, if the relationship between the accused and his family becomes an issue in the trial, then it may become admissible depending upon the way that the evidence falls.

---