R v AKB (No. 5)

Objection was taken to the evidence in paragraphs 8-16 of the statement of Malaly Iskandary dated 24 November 2016. Those paragraphs read as follows:

During the course of argument the Crown indicated that it would not lead the material in paragraph 15.

The evidence in these paragraphs can be divided into three categories. The first concerns the material in paragraphs 10-12 in relation to the accused’s attitude to the eldest boy WB.

The second category is the material contained in the last three sentences of paragraph 13 which concerns the control that the accused was endeavouring to assert over the deceased.

The third category is contained in paragraph 16 which relates to the accused’s desire for the deceased to have an abortion when she was pregnant with MB.

WB was born in May 2007. The incident recorded by the witness in paragraphs 10-12, therefore, took place in May 2007. The incident relayed to the witness concerns an act of violence against the child and a threat by the accused that, if the deceased told the police about the incident, when he got out of gaol he would kill her.

In R v AKB (No. 4) [2018] NSWSC 1082 I rejected evidence in the statement of Ms Iskandary and in another statement to the same effect, that the deceased said that the accused had bashed her when they were in Iran at some time between 2005 and 2007. I considered that, due to the lapse of time, the incident or incidents had low probative value, but in any event, that was outweighed by the prejudice to the accused under s 137 of the Evidence Act 1995 (NSW).

In my opinion, the incident recorded in paragraphs 10-12 of Ms Iskandary’s statement is in the same category. Two other things point to the low probative value and the high level of prejudice in this material. The first is that there is other evidence in the case, including from the two boys themselves, that their father cares for them and looks after them. They appear to have a good relationship with him. I do not consider that this isolated incident which, I note, was not relayed to anybody else who has given evidence of what the deceased told them about the accused and his attitude to the children, is of any probative value.

In relation to the threat to kill the deceased, there is no other evidence in the case that the accused ever made such a threat. The principal purpose of the relationship evidence being led by the Crown is to show that the relationship between the accused and the deceased had deteriorated particularly because of the attempts made by the accused to assert control over her. When the accused is now charged with her murder, I consider that a threat that might have been made in anger some nine years before the fire is highly prejudicial and that prejudice outweighs its probative value.

I reject the evidence in paragraphs 10-12.

The material in paragraph 13 is in a different category. There has already been evidence from a number of witnesses of things told to them by the deceased about the control the accused was asserting and was seeking to assert, and the deceased’s resistance to that control. I accept that the events described took place in 2009 but the nature of what is described is consistent with more recent complaints made by the deceased in relation to the accused obtaining access to her phone and her social media applications. I consider that this evidence has sufficient probative value notwithstanding that it occurred some seven years before the fire. The evidence tends to demonstrate a continuity of approach on the part of the accused.

The evidence in paragraph 13 may be adduced.

In relation to paragraph 16, evidence has already been admitted without objection from another witness who gave evidence of the same matter, namely, that the accused wished the deceased to have an abortion when she was pregnant with MB. In my opinion the evidence may be adduced for that reason.