Case Commentaries
| Published date | 01 October 2011 |
| Date | 01 October 2011 |
| DOI | 10.1350/ijep.2011.15.4.388 |
| Subject Matter | Article |
CASE COMMENTARIES
CASE COMMENTARIES
CASE COMMENTARIES
Evidence of prior misconduct directed against the victim of the offence—New
Zealand and Australia
Mahomed vR[2011] NZSC 52 was about the admissibility of evidence of a defen-
dant’s propensity to behave badly. The common law has found this kind of
evidence very troublesome and Mahomed vRshows that the codification of the Law
of Evidence in the New Zealand Evidence Act 2006 has not removed all the diffi-
culties. In most cases involving propensity evidence, the propensity does not
centre on the victim of the offence. Mahomed vRis amongst the exceptions.
Mohamed, the defendant, faced four counts: one of murdering Tahani, his baby
daughter, two of intentionally causing her grievous bodily harm and one of failing
to provide her with the necessaries of life. The grievous bodily harm charges were
founded on two serious but non-fatal assaults in the weeks preceding the fatal
assault. The charge of failing to supply the necessaries of life arose because prompt
medical treatment was not sought for the baby during the 12 hours leading up to
her death. At the trial the only live issue on the first three counts was who had
assaulted Tahani: the defendant, his wife (as the defence alleged), or both? Inter-
cepted conversations between the parents supported the prosecution claim that
the defendant was the sole culprit and the jury apparently agreed because they
convicted him of these three counts. Both parents were convicted on the fourth
count.
During the trial the Crown was permitted to lead evidence that on a hot day eight
days before the fatal assault, Tahani’s parents had left her for three hours in a
parked van while they sold jewellery in a shopping centre. She had been spotted
crying and covered in perspiration by a security officer who had called the police.
The defendant had returned to his van before the police had arrived,had shown no
concern for his daughter’s condition and had insisted on driving off immediately
against the wishes of the security officer. The Crown said that this behaviour
showed a callous disregard for Tahani’s welfare and a consciousness of guilt
vis-à-vis one or both of the non-fatal assaults which might have been discovered
doi:10.1350/ijep.2011.15.4.388
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2011) 15 E&P 361–373 361
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