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R v Niguidula (No 3)

R v Niguidula (No 3)

Case [2023] NSWSC 481 8 May 2023

Admissibility of Evidence

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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 Objection to Admission 3 not determined on the basis it is withdrawn as a result of that ruling.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…

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 Niguidula (No 3)

Details

AGLC: R v Niguidula (No 3) [2023] NSWSC 481
Case: [2023] NSWSC 481
Decision Date: 08 May 2023

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.

Orders