Regina v Mikel Fajloun; Regina v Raad Fajloun

[2007] NSWDC 380

CITATION:	Regina v Mikel Fajloun; Regina v Raad Fajloun [2007] NSWDC 380
JUDGMENT DATE:	16 November 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	The application is rejected.
CATCHWORDS:	CRIMINAL LAW - application to discharge jury - evidence of previous violence unexpectedly emerging in cross-examination - test for discharge of a jury
LEGISLATION CITED:	Evidence Act 1995 s 137
CASES CITED:	Crofts v The Queen (1996) 186 CLR 437 Regina v Gilbert Adam (1999) 47 NSWLR 267
PARTIES:	Regina Mikel Fajloun Raad Fajloun NOTE - NON-PUBLICATION ORDER FOR NAME OF COMPLAINANT
FILE NUMBER(S):	06/21/247; 06/21/248
COUNSEL:	Ms Herbert for the Crown Mr Watson for Mikel Fajloun Dr Webb for Raad Fajloun

JUDGMENT

1. Mr Watson for Mr Mikel Fajloun applied to discharge the jury. This application was made on 7 November 2007. The basis of the discharge was evidence given by KF.

2. The evidence was given on 7 November 2007 when she was being cross-examined by Mr Watson. There were two answers to two questions. The first appears at T 96:

“Q. Did you talk to him about your family situation?
A. Yeah, yes I told him when Mikel hit me and I showed him the mark on my leg”.

The second question appears on the next page and is as follows:

“Q Well you’d remember if you did because it’s fairly serious, isn’t it?
A. I don’t remember exactly what I told him but okay” (witness pointing to the lower leg on the left and saying) “when Mikel hit me on my leg, he noticed the bruise and he asked me and I told him that Mikel had hit me there”.

3. It was not part of the prosecution case that there was, on the date of the offences charged against the two accused, any personal violence inflicted by Mr Mikel Fajloun on to KF.

4. Mr Watson makes his application based upon s 137 of the Evidence Act 1995, saying that the evidence has been unfairly prejudicial to his client and is not outweighed by any probative value.

5. There is no probative value in this evidence, I say at the outset, because the answers were in a sense unresponsive and were not part of the Crown case.

6. Mr Watson argues that even though the evidence concerned an occasion or occasions other than the date of the alleged offence in this question - that being 12 November 2005 - the jury may well get the impression that the violence occurred on the same day and that hence his client was a participant in physical violence against the complainant. As Mr Watson said “the jury may well have in their mind that this kicking that is alleged against my client, took place in the circumstances of 12 November as apart to any other time”.

7. His second ground was that the jury could formulate a view from the evidence that his client was the type of person that has acted violently against the complainant in the past and it would impact unfairly in making their assessment of his client in this trial. As he said, it is outside the ambit of the trial in the sense that it was never part of the Crown case. He says it is not able to be remedied by directions because a direction would simply highlight the evidence. Mr Watson says it is just that type of evidence - namely behaviour on another occasion or character evidence - which a jury keeps an eye out for and can be critical in any trial. It is not peripheral. It is central and an important aspect for the jury to consider and they could fall into a reasoning that his client was the sort of person that could have participated in such acts of violence.

8. The Crown Prosecutor, Ms Herbert, opposed the discharge whilst acknowledging that the evidence was prejudicial to Mr Mikel Fajloun in a prima facie sense. She pointed to the open ended question which was asked by Mr Watson, which was not sufficiently closed as to avoid the answer and she also submitted that the problem could be dealt with by way of general directions on relationship evidence.

9. The law which is relevant to apply in these sorts of cases is conveniently summarised in Regina v Gilbert Adam (1999) 47 NSWLR 267. That in turn refers to the decision of the High Court in Crofts v The Queen (1996) 186 CLR 437.

10. Adam was a decision of the New South Wales Court of Criminal Appeal. In a joint judgment, the Chief Justice and James and Bell JJ (as her Honour then was) referred to features which are relevant to such an application and which were referred to in Crofts. At [73] of Adam, their Honours extract a passage from Crofts which says “that in such applications, much depends upon the seriousness of the occurrence in the context of the contested issues, the stage at which the mishap occurs, the deliberateness of the conduct and the likely effectiveness of a judicial direction designed to overcome its apprehended impact”. In Adam, their Honours also referred to the judgment of the primary judge who said : “The test for a discharge of the jury is not in any doubt; there needs to be a high degree of need for such a discharge”. It was acknowledged by the learned primary judge that that need must take second place where the court takes the view that there is a tangible risk that an accused would be denied a fair trial by reason of the event which has occurred and is further satisfied that the problem cannot be appropriately cured by a direction to the jury.

11. I approach this application by Mr Watson by reference to the considerations referred to by the High Court in Crofts and adopted by the Court of Criminal Appeal in Adam. Looking first to the seriousness of the occurrence in the context of the contested issues, the first thing I observe is that the remarks were not isolated but were made as part of the general flow of evidence. So far as the issues in this trial are concerned as well, it is the submission of Mr Watson that the witness who gave this evidence, who is the complainant, is lying when she claims that it was his client who committed the crimes. That means that the jury, if it were turning its mind to this additional evidence which has fallen from her, may well approach that evidence bearing in mind in the same argument that if she is lying about the primary allegation, then she may well be lying about this as well. The same motive would be relevant. The prejudicial evidence in this case does not come from an independent source. In other words it comes from a source which has been the subject of criticism by Mr Watson and whom he has invited to the jury to reject as a witness.

12. So given that it occurred in the flow of evidence and that it was not from an independent witness, although I regard it as significant, I do not regard it as very serious in the context of the contested issues.

13. Secondly, the stage at which it occurred was relatively early, I think on day two or three. But I also take into account that this trial has a history of difficulty in getting started. It has been in the list a number of times, so the desirability of a trial getting started and coming to a result, one way or the other, is a factor which I take into account.

14. I do not regard, thirdly, the eliciting of the evidence as deliberate. Evidently - my understanding is from what I was told from the Bar table - the witness was told not to give any answers which may refer to those events. On the one hand though, the question was fairly open ended, although the questioner, Mr Watson himself, no doubt felt safe because he knew that she had been told not to venture into that area. But, on the other hand, there could have been a little more control in my respectful opinion, in the question that was asked. But the disclosure was not deliberate.

15. Finally, I do not regard it as appropriate to give specific directions to deal with the disclosure but I have deliberately - and at the request of counsel - given directions on contextual evidence. That is evidence of other events than the events which constitute the alleged crimes in this matter. I emphasised the necessity for the jury in coming to their verdicts, to regard as relevant to the finding - whether or not the offences were proved - the importance of considering the evidence of what occurred on the day and not to draw any conclusions from other evidence about tendency. I broadened that direction deliberately a little, making reference to, for example, Mr Mikel Fajloun’s driving record to illustrate the point, so that even if the jury were to have noticed this piece of disclosed evidence, the direction I expect will take them away from using it as tendency evidence.

16. For those reasons, I have concluded that it was not necessary, in the circumstances, to discharge the jury in this case and for those reasons I have rejected Mr Watson’s application.

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