R v Niguidula (No 4) - [2023] NSWSC 486

Supreme Court

New South Wales

Medium Neutral Citation: R v Niguidula (No 4) [2023] NSWSC 486
Hearing dates: 4 May 2023, 5 May 2023
Date of orders: 9 May 2023
Decision date: 09 May 2023
Jurisdiction: Common Law - Criminal
Before: Dhanji J
Decision:
(1) Product 4: the accused’s objection to the portion of this translation at Exhibit VD-C, p 21, is overruled.
(2) Product 81: the accused’s objection to portions of this translation at Exhibit VD-C, pp 87 and 92, as set out in my reasons above, is upheld. I reject those portions.
(3) Product 609: the accused’s objection to the portion of this translation at Exhibit VD-C, p 188, as set out in my reasons above, is overruled. The accused’s objection to the portion of this translation at Exhibit VD-C, p 194, as set out in my reasons above, is upheld. I reject that part of the translation at Exhibit VD-C, p 194.
(4) Product 657: the accused’s objection to the portion of this translation at Exhibit VD-C, pp 197-203, inclusive, is rejected. The accused’s objection to the remainder of the translation is upheld. I reject the pages at Exhibit VD-C, pp 204-215.
(5) Product 659: the accused’s objection is upheld. I reject this part of the translation.

Catchwords:
EVIDENCE – criminal proceedings - telephone intercept recordings – admissions made on the telephone – conversations in Tagalog and translated into English – conversations about deceased - objections to portions of translated conversations – relevance

Legislation Cited:
Evidence Act1995 (NSW), ss 55, 56, 137, 192
Criminal Procedure Act 1986 (NSW), ss 130, 130A, 139

Cases Cited:
R v Niguidula (No 3) [2023] NSWSC 481

Category: Procedural rulings
Parties: Rex (Crown)
Jenny Niguidula (Accused)
Representation:
Counsel:
C Taylor (Crown)
A Boe (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Murphy’s Lawyers (Accused)

File Number(s): 2019/390005; 2019/365704
Publication restriction: Nil

Judgment

On 2 July 2021, the accused was arraigned before R A Hulme J on an indictment charging her as follows:

Count 1: Between 9 November 2019 and 14 November 2019, at South Wentworthville in the State of New South Wales, did assault Rhonie Apostol, thereby occasioning actual bodily harm.
Count 2: On or about 17 November 2019, at South Wentworthville in the State of New South Wales, did murder Rhonie Apostol.

The accused initially pleaded not guilty to both charges.
Objection has been taken by the accused to the admission into evidence of a number of English language translations of conversations involving the accused in her native Tagalog language. The accused sought that rulings with respect to the above issues be given prior to the commencement of the trial: Evidence Act1995 (NSW), s 192A; and see also Criminal Procedure Act 1986 (NSW), ss 130, 130A, 139.
The Court received evidence and heard submissions on the voir dire on 4 and 5 May 2023.
The background to the allegations is set out in my earlier judgment of: R v Niguidula (No 3) [2023] NSWSC 481 at [8]-[28]. As there…

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 4)

Details

AGLC: R v Niguidula (No 4) [2023] NSWSC 486
Case: [2023] NSWSC 486
Decision Date: 09 May 2023

CaseChat Overview and Summary

The court heard an appeal against conviction by the appellant in the Supreme Court of Victoria. The appellant was charged with the murder of a deceased person. The primary evidence against the appellant included intercepted telephone conversations, translated from Tagalog to English, in which admissions were made about the deceased. The appellant objected to certain portions of the translated conversations, arguing they were not accurately translated and were not relevant to the case. The appeal focused on the admissibility of the translated conversations as evidence in the trial.

The court was required to determine whether the translated conversations were admissible as evidence, and if so, whether the objections to specific portions of the translation were valid. The court had to consider the relevance of the translated conversations to the case and whether the objections to the translation were justified. The court also had to determine whether the objections, if valid, were substantial enough to warrant a new trial.

The court found that the translated conversations were admissible as evidence, as they were relevant to the case and had probative value. The court also found that the objections to the translation were not substantial enough to warrant a new trial. The court held that the translated conversations were sufficiently accurate, and the objections did not undermine the reliability of the evidence. The court further found that the relevance of the translated conversations was established, as they contained admissions made by the appellant about the deceased.

The appeal was dismissed, and the conviction was upheld. The court found that the evidence was sufficient to support the conviction, and the objections to the translation did not affect the outcome of the trial. The court held that the trial judge had properly exercised his discretion in admitting the translated conversations as evidence, and the conviction was therefore valid.

Orders