AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Supreme Court 1 November 2018

R v Latu

[2018] NSWSC 1659

HomicideDomestic & family violence
CRIMINAL LAW EVIDENCE TENDENCY EVIDENCE

Citation: R v Latu [2018] NSWSC 1659
Court: Supreme Court of New South Wales
Date: 1 November 2018
Judge(s): Lonergan J

Background

The accused was charged with murdering his domestic partner at their Liverpool unit in the early hours of 7 August 2016. The deceased was found unresponsive with severe blunt force injuries to her head and face. The accused told police and emergency services that she had been "jumped" by unknown persons in the street, but the Crown's case was that the accused had inflicted the fatal injuries during an argument.

Before the jury was empanelled, the Crown sought to adduce evidence of eight prior incidents of alleged violence by the accused, five involving the deceased and three in dispute. The disputed three comprised one alleged incident involving the deceased in 2010 or 2011, and two alleged incidents involving a former domestic partner, Hayley Bingley, in June and July 2013. The Crown also sought to adduce relationship evidence covering controlling behaviour, jealousy, and threats against the deceased's family.

The admissibility of both categories of evidence was determined on a voir dire (a hearing held in the absence of the jury to decide a legal question) concluded on 29 October 2018, with expanded written reasons delivered on 1 November 2018.

  • Whether the three disputed incidents of prior violence passed the tendency evidence tests under ss 97 and 101 of the Evidence Act 1995 (NSW), specifically whether their probative value was significant and substantially outweighed the danger of unfair prejudice to the accused.
  • Whether relationship evidence concerning the accused's controlling behaviour, jealousy, and threats against the deceased's family was admissible under ss 55, 135, and 137 of the Evidence Act.
  • Whether evidence of events more than three years before the alleged offence was too "stale" to be relevant or admissible.
  • Whether any discrete portions of the admissible evidence required exclusion or management under ss 135 or 137, including references to the accused's prior convictions and periods of custody.

Decision

Tendency evidence: Lonergan J admitted all three disputed tendency incidents. Her Honour found that the substantial similarities between those incidents and the injuries sustained by the deceased gave the evidence significant probative value within the meaning of s 97. Under s 101, the probative value of each incident significantly outweighed the danger of unfair prejudice to the accused. The common thread across the incidents was the accused's use of physical force directed specifically to the head region of an intimate partner when angry.

Relationship evidence: The judge admitted all contested categories of relationship evidence. Evidence of controlling behaviour (financial control, directing the deceased's movements, and pressuring her to terminate a pregnancy) was found to be directly relevant to the circumstances surrounding the alleged offence and to assist the jury in understanding the relationship. Evidence of jealousy, including arguments about mutual infidelity acknowledged by the accused in his electronically recorded interview, was held to be highly probative on the issues of motive and intent. Evidence that the accused threatened to harm the deceased's family was admitted as relevant to explain why the deceased remained in the relationship.

Staleness: The general submission that evidence from more than three years before the homicide was irrelevant due to "faded relevance" was rejected. Lonergan J held that no identified legal principle supports an arbitrary temporal cut-off, and that such a threshold is not reflected in any legislative test under the Evidence Act.

Sections 135 and 137: In relation to the relationship evidence, the judge was satisfied that its probative value substantially outweighed any danger of unfair prejudice, confusion, or undue waste of time. The court noted that some evidence might be adverse to the accused's interests, but not unfairly so. Both parties were left to resolve whether references to prior convictions and periods of custody required further management, with the court remaining available to make additional rulings as needed.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Lonergan J confirmed that tendency evidence can be admitted where prior incidents share substantial similarities with the charged conduct, even when those incidents involve a different complainant, provided the statutory tests of significant probative value and proportionality to prejudice are satisfied.
  • Under ss 97 and 101 of the Evidence Act 1995 (NSW), a court must assess the probative value of tendency evidence by reference to the specific similarities between the prior conduct and the alleged offence, not simply by the volume or number of incidents.
  • No principle of staleness or arbitrary time limit governs the admissibility of tendency evidence; temporal distance is a factor that may inform probative weight but does not create a blanket exclusion.
  • Relationship evidence going to controlling behaviour, jealousy, and threats may be admissible in a domestic homicide trial where it assists the jury in understanding the dynamics of the relationship and is relevant to motive, intent, and context surrounding the alleged offence.
  • Following the High Court's decision in McPhillamy v The Queen [2018] HCA 52, published after the voir dire concluded, Lonergan J reviewed the ruling and considered it did not affect the principles applied, though the court remained open to urgent applications to re-agitate the issue if counsel identified grounds to do so.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW): ss 55, 97, 101, 135, 137

Cases:
- 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