R v Niguidula (No 3)

Case [2023] NSWSC 481


Supreme Court


New South Wales

Medium Neutral Citation: R v Niguidula (No 3) [2023] NSWSC 481
Hearing dates: 26 April 2023, 27 April 2023
Date of orders: 8 May 2023
Decision date: 08 May 2023
Jurisdiction:Common Law - Criminal
Before: Dhanji J
Decision:

Objection to Admissions 1, 2, 4 and 5 overruled. Objection to Admission 3 not determined on the basis it is withdrawn as a result of that ruling. Admission 6 rejected.

The evidence of items B(4) and B(6)(ii) in the Crown’s tendency Notice of 6 March 2023 is admissible to prove the accused had a tendency to act in a particular way as specified in [6(a)(i)] of that Notice in support of Count 1 on the indictment. The accused’s objection to the Crown’s reliance on tendency evidence is otherwise upheld.

Catchwords:

EVIDENCE – admissions – criminal proceedings – telephone intercept recordings – admissions made on the telephone – conversations in Tagalog and translated into English – admissions not regarded as unambiguous confessions – probative value – assessing probative value – assessing the danger of unfair prejudice – significance of expert’s opinion


EVIDENCE – tendency evidence – criminal proceedings– tendency to engage in violence towards the deceased while in a relationship – tendency to create or recount false stories – tendency to engage in violence in previous relationship – hearsay objection – where evidence to be relied upon for a non-tendency purpose – where sought to be relied upon for count 1 and count 2 – significant probative value

Legislation Cited:

Crimes Act 1900 (NSW), s 23A

Criminal Procedure Act 1986 (NSW), ss 130, 130A, 139, 161A

Evidence Act1995 (NSW), ss 90, 135, 137, 139, 192A

Cases Cited:

Em v The Queen (2007) 232 CLR 67; [2007] HCA 46

Fantakis v R [2023] NSWCCA 3

Galvin v R (2006) 161 A Crim R 449; [2006] NSWCCA 66

Gardiner v R [2023] NSWCCA 89

Harris v R (2005) 158 A Crim R 454; [2005] NSWCCA 432

Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20

IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14

JS v R [2022] NSWCCA 145

Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37

Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7

R v BD (1997) 94 A Crim R 131

R v Burton (2013) 237 A Crim R 238; [2013] NSWCCA 335

R v Fantakis [2018] NSWSC 1815

R v Fletcher (2005) 156 A Crim R 308; [2005] NSWCCA 338

R v LEH [2020] NSWCCA 135

R v Lockyer (1996) 89 A Crim R 457

R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112

R v SK; SK v R [2011] NSWCCA 292

R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509

R v Zhang [2005] NSWCCA 437; 158 A Crim R 504

RH v R (2014) 241 A Crim R 1; [2014] NSWCCA 71

Shepherd v The Queen (1990) 170 CLR…

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AGLC
R v Niguidula (No 3) [2023] NSWSC 481
Case
[2023] NSWSC 481
Decision Date

CaseChat Overview and Summary

The matter of R v Niguidula (No 3) was heard in the Supreme Court of Victoria. The respondent was charged with murder and aggravated indecent assault in relation to the death of the complainant. The case involved complex issues of evidence, particularly the use of telephone intercept recordings and translated admissions. The respondent challenged the admissibility of these recordings on the basis that they were not clear confessions and that the translation process may have introduced unfair prejudice.

The court had to determine whether the telephone intercept recordings, translated from Tagalog to English, could be admitted as evidence. The respondent argued that the admissions were not clear enough to be considered unambiguous confessions and that the translation process could have led to misinterpretation. The court also had to assess the probative value of this evidence against the risk of unfair prejudice. Additionally, the court examined the admissibility of evidence of the respondent’s violent tendencies and false storytelling, considering whether this evidence was relevant to the charges and whether it could be used for non-tendency purposes.

The court found that the telephone intercept recordings, despite the translation issues, had significant probative value and were not subject to unfair prejudice. The court held that the probative value of the evidence outweighed the potential prejudice. Regarding the evidence of the respondent's violent tendencies, the court determined that it was relevant and had significant probative value for the charges, particularly in establishing the likelihood of the respondent committing the crimes. The court concluded that this evidence could be admitted for non-tendency purposes as well.

The court ruled that the telephone intercept recordings and the evidence of the respondent's violent tendencies were admissible. The respondent's challenge to the admissibility of these pieces of evidence was dismissed. The court allowed the appeal against conviction and ordered a retrial.

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Background

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Decision

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