Regina v Mikel Fajloun; Regina v Raad Fajloun

[2007] NSWDC 381

CITATION:	Regina v Mikel Fajloun; Regina v Raad Fajloun [2007] NSWDC 381
JUDGMENT DATE:	5 November 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	The evidence is admitted subject to exceptions noted in judgment.
CATCHWORDS:	CRIMINAL LAW - admissibility of evidence - previous acts of domestic violence towards victim - objection on grounds of relevance
LEGISLATION CITED:	Evidence Act 1995 s 135, s 137
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. Objection is taken by Dr Webb to evidence proposed to be led by the Crown. The evidence the subject of the objection was tendered on the voir dire and became exhibits VD-A and VD-B. Exhibit VD-A comprises three statements of the complainant. Exhibit VD-B comprises a series of photographs of the complainant.

2. Dr Webb, who acts for Mr Raad Fajloun, takes his objection on the grounds of relevance and under ss 135 and 137 of the Evidence Act 1995.

3. His client faces three charges. One is aggravated break enter and commit serious indictable offence. The second is of aggravated kidnapping and the third is assault occasioning actual bodily harm. The alleged victim in each case is his client’s wife.

4. Very briefly the allegation is that Mr Raad Fajloun and his brother and co-accused Mikel Fajloun crashed through the complainant’s unit door with an axe. They kidnapped her, forced her into a car, and took her to an unoccupied house. There she was detained. She was assaulted physically in that house, the Crown alleges, by Mr Raad Fajloun.

5. As I have said, Mr Raad Fajloun and the complainant were married. At the time of these alleged events they had been married for almost twenty years. They had four children. The evidence which is tendered I do not propose to describe because it is set out in the exhibits. It relates to acts of violence and words said over the previous week or two between Dr Webb’s client and the complainant. The evidence which is objected to in VD-A is highlighted in pink. The whole of VD-B comprising the photographs is objected to.

6. Ms Herbert, who appears for the Crown, presses the tender of the evidence on two bases. The relevance is, she says, that the evidence demonstrates the deterioration in the relationship and escalating violence between the parties to the extent where a day or two before the events in question the complainant reported to the police about her husband. It is relevant in an associated way to the allegation that forced entry was made by the accused into the complainant’s unit.

7. The second basis of relevance is said to be motive. The evidence demonstrates, it is argued, a clear intention on the part of the complainant to terminate the relationship with the accused, but the evidence goes on to demonstrate, so it is argued, that the only way for the accused to resume the relationship is by way of force.

8. Dr Webb’s principal argument concerns the probative value and the prejudicial effect. He argues that I must refuse to admit the evidence because its probative value is outweighed by the danger of unfair prejudice to his client. Hence the evidence would fail the test set out in s 137 of the Evidence Act. An associated argument is put forward under s 135 of the same Act.

9. Dr Webb argues that the probative value is low because of concessions which he has made. He has indicated the fact that his client agrees that there was a deteriorating relationship between him and his wife. Indeed in the passages in VD-A which I have highlighted in green, he argues that the relationship involved fighting and persistent attempts by his client to gain access to his wife’s unit. Hence he says in that context the probative value is low. On the other hand he says the evidence has the capacity to be viewed by the jury as tendency evidence and its prejudicial effect in that regard is high.

10. In my view the evidence needs to be seen in this context. What the prosecution alleges is an extraordinarily serious crime. Not only that, but it is a crime alleged to have been committed by a husband against his wife of some twenty years with whom he shares four children. It involves kidnapping her, removing her from her unit, and detaining her in another house. To my mind it is of significant probative value for the prosecution to be able to demonstrate that that extraordinary level of violence was not an isolated incident. In other words, I accept Ms Herbert’s submission that the evidence the subject of this application demonstrates a degree of escalating violence and that in turn is of very significant probative value in her case.

11. I do not regard there being any danger of unfair prejudice. The evidence is not tendered as tendency evidence. Any risk that the jury could so regard it will, I am sure, be made clear by Ms Herbert in her closing submissions, but in any event will be the subject of directions by me.

12. For the same reasons I regard the probative value of the evidence as not being substantially outweighed by any danger of unfair prejudice under s 135 of the Evidence Act.

13. I should add at this stage a couple of exceptions to my ruling. In paragraph 7 of exhibit VD-A, the first statement 11 November 2005, I propose to not admit the words “and he called me a slut” for reasons I will give shortly. In the same paragraph I propose not to admit the words “He said, ‘Why you rent a unit for men to come and go and pay you, are you rich now?’”. I do not regard those passages as carrying the same degree of probative value as the passages indicating violence and they are in their own way prejudicial because of the nature of the language. Also they are not sufficiently proximate to the issues in this trial that I regard their probative value as sufficient to warrant their admission.

14. Accordingly I propose to allow the evidence tendered with the exceptions which I have mentioned. The exhibit VD-B I also propose to admit. Its relevance is, as Ms Herbert says, that it demonstrates bruising before the events in question. That will be graphically compared, I am told, with much more extensive injuries after the events in question, thereby being significantly relevant to the timing of the events.

15. For the reasons which I have given concerning VD-A I propose to admit VD-B as well.

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