R v Taheri

Case [2017] SASCFC 92

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v TAHERI

[2017] SASCFC 92

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Parker and The Honourable Justice Lovell)

2 August 2017

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

Appeal against convictions for serious criminal trespass and threats committed against the appellant’s estranged wife.  Grounds complain about directions to the jury on the topics of the appellant’s out of court statements to police, the discreditable conduct evidence led by the prosecution, the evidence in support of count 3, and putting the defence case.  It is further complained that the trial miscarried as a result of certain cross-examination by the prosecution of one of the defence witnesses and that the directions given to address that matter were not capable of retrieving the trial.

Held (Vanstone J, Parker and Lovell JJ agreeing): Appeal dismissed.  Directions on the out of court statements were correct.  The defence case was properly put.  The provision of agreed facts together with the Judge’s directions about the prosecutor’s cross-examination were apt to restore the situation and to address any risk of miscarriage.  With one exception the directions on discreditable conduct were comprehensive and sufficient.  The failure to direct on one aspect of that evidence was of such a nature that no substantial miscarriage of justice resulted.

Evidence Act 1929 (SA) s 34P, s 34R; Criminal Law Consolidation Act 1935 (SA) s 281, s 285C, s 353, referred to.
Mule v The Queen (2005) 79 ALJR 1573; R v Helps (2016) 126 SASR 486; R v Collie (2005) 91 SASR 339; CTM v The Queen (2008) 236 CLR 440; Nudd v The Queen (2006) 80 ALJR 614; Perara-Cathcart v The Queen (2017) 91 ALJR 411; Hargraves v The Queen (2011) 245 CLR 257, considered.

R v TAHERI
[2017] SASCFC 92

Court of Criminal Appeal:  Vanstone, Parker and Lovell JJ

  1. VANSTONE J:     The appellant was tried in the District Court before Judge and jury for four offences arising from a confrontation between the appellant and his estranged wife and her sister.  His defence was one of alibi, evidence of which was led from his witness Fedayee Qadir, and, to a lesser extent, from the appellant’s sister, Zhara Taheri.  The appellant was found guilty as charged of each count. 

  2. A single Judge of this Court considered the appellant’s amended notice of appeal which contained 10 grounds.  He granted permission on most of them, but referred the application for permission on grounds 3, 4 and 6 to this Court.  At the appeal hearing the grounds were further amended by provision of a new document.…

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R v Taheri [2017] SASCFC 92
Case
[2017] SASCFC 92
Decision Date

CaseChat Overview and Summary

The appeal concerned a criminal conviction against the appellant, Mr Taheri, for four offences: aggravated serious criminal trespass, aggravated threatening harm, aggravated threatening life, and aggravated threatening harm against his wife and her sister. The dispute arose from alleged incidents at the former matrimonial home. The appeal was heard by Vanstone, Parker and Lovell JJ of the Supreme Court of South Australia.

The court was required to determine whether the trial judge had provided adequate directions to the jury regarding the use of evidence of the appellant's prior alleged misconduct and out-of-court statements. Specifically, the appeal focused on whether the judge had properly explained the permissible and impermissible uses of "discreditable conduct" evidence, as mandated by section 34R of the *Evidence Act 1929* (SA), in relation to the various charges and the complainant's evidence.

The court reasoned that while evidence of uncharged incidents was admitted to provide context and assist in evaluating the complainant's credibility, the trial judge's directions were crucial in preventing prejudice. The judge's directions explained that this evidence could help assess the reliability of the complainant's testimony, provide a motive for the charged offences, and explain the background, but it was impermissible to use it to infer guilt or conclude that the appellant was the type of person likely to commit the charged offences. The court considered the specific directions given in light of the "real issues in the case" and the general responsibility of a trial judge to direct the jury on matters of law relevant to those issues.

Ultimately, the court granted permission to appeal on ground 3, concerning directions about the appellant's out-of-court statements, but dismissed the appeal on other grounds, finding that the directions regarding discreditable conduct evidence, while extensive, were ultimately sufficient to avoid a miscarriage of justice.

Orders

Orders of the court

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Background

Background to the litigation

A single Judge of this Court considered the appellant’s amended notice of appeal which contained 10 grounds. He granted permission on most of them, but referred the application for permission on grounds 3, 4 and 6 to this Court. At the appeal hearing the grounds were further amended by provision of a new document. Most of the grounds are similar to those considered by the single Judge. In the result, six grounds are pressed. Of those, grounds 3 and 5 (in part) are not the subject of a grant of permission. Grounds 4 and 8 in the final formulation of the grounds are abandoned. Background The information charged four offences, being count 1, aggravated serious criminal trespass in a place of residence, count 2, aggravated threatening harm against the appellant’s wife “V”, count 3, aggravated threatening life against V, and count 4, aggravated threatening harm against V’s sister. Each was alleged to have occurred at the former matrimonial home at Parafield Gardens. The appellant and V married on 3 November 2012. After a short time living with a friend, the couple moved to the home of the appellant’s parents for three months. The prosecution alleged that the appellant had been violent from the commencement of their relationship, including while they lived at his parents’ home. On the prosecution case, the volatility of the relationship reached a crescendo in November 2013, when the appellant took V’s first aid certificate and demanded money. The stand-off ended in the appellant assaulting V. She notified the police and the appellant was arrested and placed under an interim intervention order which, among other things, prohibited him from being within 100 metres of V, or entering or remaining in her place of residence. After the appellant’s arrest in November 2013, he was admitted to bail. The following day he attended the home of V’s parents, armed with a knife. He banged on the door and demanded his wife back. It was alleged that he threatened to kill V’s sister and her family. He then slashed his own wrist before leaving. It was the prosecution case that on 27 January 2014 the appellant attended the former matrimonial home at Parafield Gardens, armed with a knife and a length of rope. V and her sister were present. Upon seeing V, the appellant cut open a fly wire screen to gain access to the house and entered. This was count 1. He then pushed V into the bedroom and, while holding the knife, said “I will kill you”. V said he also put the knife to her throat telling her to take back her police statement. This was count 2. Count 3 was alleged to have occurred in the bedroom. On the prosecution case as outlined in the opening address the appellant placed the rope around V’s neck while telling her that he would kill her. V also said that in the bedroom the appellant was saying to her words to the effect “I am going to kill you. Take back your statement and I want you back”. During this period V’s sister was nearby and was telling the appellant to leave V alone. It was alleged that the appellant told V’s sister he would kill her and produced the knife to her. This was count 4. Ground 1 – directions about the appellant’s out of court statements

Evidence

Evidence Before The Court

In my opinion the course taken by counsel, with the imprimatur of the Judge, was appropriate and effectively addressed any risk of a miscarriage arising from the cross-examination. Ground 5 – discreditable conduct evidence and directions It is convenient to set out the terms of this ground:5.The learned trial Judge failed to direct the jury as to the permissible uses and impermissible uses of “discreditable conduct of evidence” before the jury, as required by s 34R of the Evidence Act 1929 (SA) and, in particular:a. Failed to adequately direct the jury as to the permissible uses of evidence concerning the nature of the appellant’s relationship with the complainant in the context of counts 1, 2 and 3.b. Failed to direct the jury as to the permissible and impermissible use of evidence that the appellant had threatened to kill [V’s sister], the alleged victim of count 4, in November 2013 at the complainant’s parents’ house.c. Failed to direct the jury as to the permissible and impermissible use of evidence concerning the history of the appellant’s relationship with the complainant when considering count 4, in the context of having not directed the jury that the evidence was inadmissible as to count 4.d. Failed to adequately direct the jury as to the permissible and impermissible uses of evidence that the appellant had breached conditions of bail or been in jail. The discreditable conduct evidence may be summarised as follows. The appellant forced V to give him money and hit her daily and sometimes twice a day for this purpose. He forced her to give him money every fortnight. One example of the appellant hitting V was in November 2013 when he took her first aid certificate and hit her on the left ear. V fell down on the floor and the appellant hit her leg and her body. V called the police and the appellant was arrested. An intervention order was issued. The day after his November 2013 arrest, the appellant attended V’s parents’ home armed with a knife and (a) demanded his wife back, (b) threatened to “kill you all”, (c) threatened to kill V’s sister, and (d) slashed his wrist with a knife. The appellant continued to follow V after the intervention order was issued. The appellant’s witness Mr Fedayee said that he was told the appellant had breached the conditions of the bail he was placed on at the end of November 2013. The appellant was in gaol after the events of 27 January 2014. This evidence was admitted under s 34P(2)(a) of the Evidence Act 1929 (SA). It was not admitted as propensity evidence under s 34P(2)(b). The obligation which fell upon the Judge in terms of directions about such evidence derives from s 34R which is in these terms:34R—Trial directions (1)If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used. (2)[Not relevant] The directions required by s 34R will be dictated by the circumstances of the case and the real issues in the trial. In Perara-Cathcart v The Queen (2017) 91 ALJR 411 the plurality put the proposition as follows: [53] ... Whether [the] directions conform to the requirements of s 34R(1) can only be determined having regard to the real issues in the case. In Huynh v The Queen, French CJ, Crennan, Kiefel, Bell and Gageler JJ reiterated that the general responsibility of the trial judge to direct the jury on matters of law is as stated in Alford v Magee; that is, the trial judge is obliged:“to decide what the real issues in the case are and to direct the jury on only so much of the law as they need to know to guide them to a decision on those issues.”(Footnotes omitted)

Decision

Reasons for decision

I find that neither ground 6 nor 7 is made good.Conclusion For the foregoing reasons I would grant permission to appeal on ground 3, but I would dismiss the appeal.Appendix A I now move to another topic that relates to the accused in this matter.The general rule of our law is that evidence that an accused has previously been alleged to have committed other criminal acts, or is otherwise of bad character, is not admissible in a criminal trial.The rule is that his guilt must be proved by evidence in respect of the conduct that is alleged against him in this trial.Your verdicts are not to be influenced, nor are you to be prejudiced by anything arising from his past. In this trial you have heard evidence of other alleged acts, conduct, or events allegedly committed by the accused on the complainant that occurred prior to the charged incidents.These acts are not the subject of any charges. In this regard you have heard evidence that the accused demanded money from [V] and that he would hit her in order to get her to give money to him.She also gave evidence that there was an incident in November 2013 when he took her first aid certificate and would not give it back to her unless she paid for it. She said that the accused asked her to pay more than $100 to get it back. She said she was not going to pay him and then he started to hit her, he hit her on the left ear she said, and she fell to the floor. She said he was hitting her on the leg and body and she said she nearly died. She said she was unable to hear after he had hit her on the ear.She gave evidence that she called the police on that occasion. They came to the house and they arrested the accused. As a consequence of this complaint an interim intervention order was put in place. You have some of the terms of that intervention order in the agreed facts.[V] said that, on the day after the accused was arrested, he got bail and he came to her parents’ house. She went on to say that he had a big knife with him and was hitting the door and kicking it. He was shouting ‘Open the door’ and said he wanted his wife back. She went on to say that her father was coming back from the Afghani shop and the accused followed her father into the back of the house and that the accused was then told to leave the house.[V] told you that, whilst the accused had been at the front door, he began to cut his wrists with the knife and there was a lot of blood. None of these acts are the subject of the charges before you.As I said, usually in a criminal trial evidence of other alleged crimes does not come before you. However, in this case, you have heard this evidence because it is potentially helpful to you in evaluating the complainant’s evidence, that is the evidence of [V]. Hearing the whole of the allegations may better enable you to assess her evidence. The whole of the alleged course of conduct provides a context in which it is said that the charged incidents occurred. In a sense, the more evidence you have of the interaction between her and the accused, the better opportunity you have to evaluate her evidence and determine to what extent, if any, you are prepared to rely upon it.In that way it can be said that the whole sequence of events throws light on the nature of the entire relationship that the complainant said existed between her and the accused at the relevant time.You should consider the evidence of the uncharged incidents, along with the evidence going directly to the charges, in determining what weight, if any, you are prepared to place on [V’s] evidence. Evidence of the uncharged acts is available to you as material that may assist you in concluding that her evidence is reliable. Alternatively, it may assist the defence in showing inconsistency or unreliability or inherent improbability in her evidence and thereby raise doubts about the charges. In this particular regard the prosecution point to this evidence to show why the accused would have attended at [V’s] house uninvited, and it may provide a motive for him to have committed the charged offences.It also, of course, may explain the background against which the charged offences came about. If you did not have this background material then the charged offences may otherwise have seemed unreal, unintelligible, not fully comprehensible. It may also explain why the complainant’s sister went with her to the house on the occasion when the offences were allegedly committed. It may also explain why it was that the police were not called until the complainant and her sister were safely back at their parent’s house.These are the proper uses for this evidence of the uncharged incidents. They are the only way in which you may use the evidence. Of course, you should not use any of the uncharged incidents at all unless you first of all accept that they have occurred. In this regard, you will need to consider all of the evidence that goes towards the uncharged acts and consider whether you are satisfied beyond reasonable doubt that these incidents did in fact occur.If you are so satisfied, then you may use them in the way that I have described for you.I must also direct you that there are certain impermissible uses of this evidence. I direct you that the fact that allegations are made about other occasions when the accused may have committed other offences does not in any sense absolve you from the task of determining whether the charges themselves have been made out. It would be wrong for you to say in effect that you are satisfied that the accused had assaulted [V], hit her, or threatened her at some stage, and ‘we will therefore convict him’.It would be wrong for you to conclude on the uncharged conduct that the accused is the sort of person who would be likely to commit the offences with which he is charged. Remember: it is the evidence presented in proof of the charges themselves that are critical evidence in this trial. Evidence of the other uncharged incidents is given only to assist you in your evaluation of the evidence going directly to those charges.Ultimately, it is upon the charges themselves that you must deliver your verdicts.In this trial, you have also learnt that the accused was in custody for a time and that he may have breached his bail. In a similar way it would be quite wrong of you to conclude that he was the type of person who would commit the charged acts as a consequence of those things. Such reasoning would be most unfair and could lead you into error.

Ratio Decidendi

Legal Principle Established

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