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The Queen v Naidu

The Queen v Naidu

Case [2010] VSCA 265 18 October 2010

Interlocutory Orders

Appeal

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0276

THE QUEEN
THE QUEEN	Applicant
v
KAMLESHWAR NAIDU	Respondent

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JUDGES:	ASHLEY, NEAVE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 September 2010
DATE OF JUDGMENT:	18 October 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 265
JUDGMENT APPEALED FROM:	[2010] VSC 356 (J Forrest J)

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Criminal law – Interlocutory appeal – Coincidence evidence ruled inadmissible pursuant to s 295(3)(a) Criminal Procedure Act 2009 (Vic) – Crown’s application for leave to appeal – Basis upon which leave may be granted – Whether judge below misapplied principle of ‘significant probative value’ – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C Beale and Mr G Barr	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr R Van de Wiel, QC and Ms L Ristivojevic	Doogue & O’Brien

ASHLEY JA:

A judge in the Trial Division ruled before trial that evidence which the Crown wished to adduce as coincidence evidence under s 98 of the Evidence Act2008 (Vic) (‘the Act’) did not, of itself or having regard to other evidence to be adduced, have significant probative value on the trial of Kamleshwar Naidu for the murder of his wife Jayanti (‘J’) on 16 June 2006. His Honour certified, pursuant to s 295(3)(a) of the Criminal Procedure Act 2009 (Vic) that the evidence which he had ruled inadmissible would substantially weaken the Crown case. Now the Crown seeks leave to appeal his Honour’s ruling, and to prosecute the appeal if leave is granted.

In my opinion, leave to appeal should be refused.

The Crown case against Naidu

The case against Naidu is that he set fire to J in the garage of their Doveton home, using an accelerant. There is no doubt that she was set alight and that her death was a result of burns which she sustained. Clear also it is that Naidu and the couple’s infant daughter were at home at the relevant time, and that no one else was then present.

On Naidu’s account - always remembering that he will not be put at trial to prove anything - his wife committed suicide, she having both threatened and attempted to do so on earlier occasions.

Notice of intention to adduce coincidence evidence

The Crown gave notice under s 98(1)(a) of the Act of intention to introduce evidence that two or more events occurred to prove the following facts in issue: (1) that Naidu killed J; and (2), that he intended to kill her or cause her really serious injury. The evidence would be adduced to prove that he set fire to J with the pertinent intent.

The two events of which evidence was to be adduced, and ‘particulars of the date, time and place and the circumstances in which each of the events occurred, and the names of relevant witnesses’, were described as follows:

Table B – Particulars for each event

DESCRIPTION OF EVENT	DATE	TIME	PLACE	CIRCUMSTANCES	WITNESSES
1.	The accused’s first wife…

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 The Queen v Naidu

Details

AGLC: The Queen v Naidu [2010] VSCA 265
Case: [2010] VSCA 265
Decision Date: 18 October 2010

CaseChat Overview and Summary

The Queen, in this case, brought an interlocutory appeal against the decision of the County Court at Melbourne in relation to evidence that was deemed inadmissible under section 295(3)(a) of the Criminal Procedure Act 2009 (Vic). The defendant, Naidu, contested the admissibility of coincidence evidence, which the prosecution argued had significant probative value. The appeal focused on whether the trial judge had misapplied the principle of significant probative value in excluding the evidence.

The central legal issue before the court was whether the trial judge had erred in excluding the coincidence evidence from the trial. The court was tasked with determining whether the judge had misapplied the principle of significant probative value, which is a critical criterion for admissibility of evidence in criminal trials under the relevant statute. The court had to assess the application of this principle by the trial judge to decide if the exclusion of the evidence was justified or not.

In its reasoning, the court considered the trial judge's assessment of the evidence and the application of the significant probative value test. The court found that the trial judge had not misapplied the principle of significant probative value in excluding the evidence. The court concluded that the trial judge's decision was well-reasoned and aligned with the statutory requirements, thus the application for leave to appeal was refused. The decision underscored the importance of correctly applying statutory criteria in the admission of evidence, particularly in criminal trials where the integrity of the judicial process is paramount.

Orders