R v Chatimba (No 1) - [2021] NSWSC 204

Supreme Court

New South Wales

Medium Neutral Citation: R v Chatimba (No 1) [2021] NSWSC 204
Hearing dates: 8-9 March 2021
Date of orders: 10 March 2021
Decision date: 10 March 2021
Jurisdiction: Common Law
Before: Wright J
Decision:
Evidence admitted in part

Catchwords:
EVIDENCE – Tendency evidence - Accused charged with murder – Defence of self-defence or defence of another – Where counsel for the accused sought to adduce evidence of previous instance of violence on the part of the deceased as tendency evidence – Objection by Crown – Whether evidence had significant probative value – Evidence admitted in part

Legislation Cited:
Evidence Act 1995 (NSW)

Cases Cited:
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
McPhillamy v The Queen [2018] HCA 52; 92 ALJR 104
R v Sharpe (No 5) [2021] NSWSC 52
R v Wilson (No 3) [2017] NSWSC 1680

Category: Procedural rulings
Parties: Regina (Crown)
Nathan Chatimba (Accused)
Representation:
Counsel:
G Christofi (Crown)
A Evers (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Bannisters Lawyers (Accused)

File Number(s): 2018/247460

Judgment

The accused, Mr Chatimba, has pleaded not guilty to the murder of Peni Apikotoa (the deceased). There is, however, no issue that it was Mr Chatimba who inflicted the fatal blows on the deceased with a knife.
As I understand the accused’s case, the deceased was known to the accused and his former partner and had been drinking at a hotel, where he was contacted by the deceased and the accused’s former partner by telephone. As a result of that contact, the deceased thought that the accused’s former partner, whom he knew as a friend, was being bashed. The accused’s contention is that the deceased, in an angry state, went to the house where the accused was, which was near the hotel, and that the stabbing occurred as part of an altercation initiated by the deceased by punching the accused. While attempting to defend himself at that time, the accused says that he armed himself with a knife and the stabbing occurred when the deceased continued to swing at the accused and the accused was simply jabbing the knife out to try and keep the deceased back.
By a tendency notice dated 8 March 2021, the accused seeks to adduce evidence of a previous incident involving the deceased on the basis that such evidence demonstrates a tendency on the part of the deceased to be violent when he had been drinking, to throw punches without warning and then to continue to punch.
The tendency notice specifically identified the relevant tendency on the part of the deceased and the substance of the evidence in the following terms:

“The tendencies that the accused seeks to adduce evidence of, prove, and rely upon, are that [the deceased] had a tendency
a. To be physically violent when drinking
b. After consuming alcohol, to confront a person by physical approach
c. To use his fists…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Chatimba (No 1)

Details

AGLC: R v Chatimba (No 1) [2021] NSWSC 204
Case: [2021] NSWSC 204
Decision Date: 10 March 2021

CaseChat Overview and Summary

The case involved a charge of murder against Chatimba, which was heard by the Supreme Court of Victoria. Chatimba claimed self-defence or defence of another as his defence strategy. The court had to decide whether the defence was allowed to present evidence of a previous instance of violence committed by the deceased, as a means of establishing a tendency. The Crown objected to the admission of such evidence, arguing that it did not hold significant probative value. The court had to weigh the probative value of the evidence against the potential for prejudice to the accused.

The court found that the evidence of the deceased's previous acts of violence was relevant to the accused's defence of self-defence or defence of another. The court held that such evidence could establish a tendency towards violent behaviour, which was relevant to the circumstances of the offence. However, the court also recognised the potential for prejudice to the accused, and therefore only allowed the evidence to be admitted in part. The court concluded that the evidence was relevant and probative, but had to be balanced against the risk of prejudice.

In conclusion, the court allowed the evidence of the deceased's previous acts of violence to be admitted, but only in part. The court found that the evidence was relevant and probative to the accused's defence of self-defence or defence of another, but also recognised the potential for prejudice to the accused. The court therefore exercised its discretion to limit the extent of the evidence that could be adduced. This decision highlights the importance of balancing the probative value of evidence against the risk of prejudice in criminal trials.

Orders