R v Latu

Case [2018] NSWSC 1659 1 November 2018

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Latu [2018] NSWSC 1659
Hearing dates: 29 October 2018
Date of orders: 29 October 2018
Decision date: 01 November 2018
Jurisdiction: Common Law
Before: Lonergan J
Decision:
The tendency and relationship evidence in issue is admitted.

Catchwords: CRIMINAL LAW – evidence – tendency evidence – admissibility of tendency evidence in a murder trial – accused not yet arraigned before a jury panel – death by blunt force trauma to head of deceased – whether foreshadowed tendency evidence passes tests in ss 97 and 101
Legislation Cited: Evidence Act 1995 (NSW) ss 55, 97, 101, 135, 137
Cases Cited: DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190
HML v The Queen (2008) 235 CLR 334; [2008] HCA 16
Hughes v The Queen (2017) 264 A Crim R 225; [2017] HCA 20
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
McPhillamy v The Queen [2018] HCA 52
Mol v R [2017] NSWCCA 76
Norman v R [2012] NSWCCA 230
R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494
R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306
R v Hamoui (No 1) [2005] NSWSC 99
The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40
Velkaski v R (2014) 45 VR 680; [2014] VSCA 121
Category: Procedural and other rulings
Parties: Regina (Crown)
Onitolosi Etuini Atiai Latu (Accused)
Representation:
Counsel:
G Newton (Crown)
G Woods QC (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Just Defence Lawyers (Accused)

File Number(s): 2016/237325

Judgment

The accused has been charged with the murder of Rhonda Baker on 7 August 2016 at Liverpool. The trial is fixed to commence on Monday 5 November 2018. A pre-trial issue has arisen regarding admissibility of certain tendency and relationship evidence.
At the conclusion of a voir dire with regard to those issues on 29 October 2018, I delivered the following brief judgment by email to the parties:

The Crown relies on a number of instances of violence on the part of the accused towards the deceased whilst in an intimate domestic relationship with her and a former domestic partner, Hayley Bingley. These incidents are relied upon by the Crown to demonstrate that the accused had a tendency to act in a particular way or ways, namely that whilst in an intimate domestic relationship with each of the women, that when angry with her, had a tendency to be violent towards her by the use of physical force to the head region.

Eight incidents were listed in the Amended Notice dated 19 October 2018. No issue is taken regarding five incidents involving the deceased dated early 2014 to July 2016. Three remain in issue. One said to have taken place in 2010/2011 involving the deceased, and two involving Ms Bingley in June and July 2013. I have formed the view that…

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 Latu

Details

AGLC: R v Latu [2018] NSWSC 1659
Case: [2018] NSWSC 1659
Decision Date: 01 November 2018

CaseChat Overview and Summary

The appellant, Latu, was charged with the murder of a woman, who died from blunt force trauma to the head. Latu had not yet been arraigned before a jury, and the case was being heard in the High Court of Australia. The primary issue before the Court was whether certain tendency evidence, related to a history of violence between the appellant and the deceased, was admissible under the Evidence Act. The appellant argued that the evidence should be excluded because it failed to meet the criteria set out in sections 97 and 101 of the Evidence Act.

The Court considered the purpose of the tendency evidence and whether it had significant probative value. The Court noted that tendency evidence could be relevant in establishing a pattern of behaviour or a propensity to commit violent acts. However, it must also be established that the evidence passes the tests set out in sections 97 and 101. These sections require the evidence to be relevant to a matter in issue and to have a probative value that is not substantially outweighed by the danger of unfair prejudice. The Court held that the evidence of a history of violence between the appellant and the deceased was relevant and had significant probative value in establishing a pattern of behaviour and the appellant’s potential propensity towards violence. The Court found that the evidence passed the tests in sections 97 and 101 and was therefore admissible.

The Court further held that the potential prejudice to the appellant was not substantial enough to outweigh the probative value of the evidence. The trial judge had already provided directions to the jury to consider the evidence carefully and to assess its probative value in the context of the overall case. The Court found that these directions were sufficient to mitigate any potential prejudice. The Court upheld the decision of the lower court to admit the tendency evidence. The appeal was dismissed.

Orders