Citation: Latu v R [2023] NSWCCA 19
Court: Court of Criminal Appeal, NSW
Date: 17 February 2023
Judge(s): Bell CJ, Davies J, Fagan J
Background
The applicant was convicted by jury in December 2018 of murdering his intimate domestic partner. The jury accepted that the applicant inflicted multiple blunt force blows to her head. He was sentenced to 28 years' imprisonment with a non-parole period of 21 years, and received a concurrent two-year term for breaching an apprehended domestic violence order.
At trial, the Crown led two categories of evidence. The first was tendency evidence: eight prior incidents establishing the applicant's tendency to act violently towards the deceased, particularly directing physical force to her head region. The second was relationship evidence: a pattern of abuse, jealousy, and controlling behaviour, including threatening emails. One email referenced a prior threat by the applicant to "cave in" the deceased's head. The pathologist who performed the autopsy noted that part of the deceased's skull had "caved in."
The trial judge directed the jury on the tendency evidence. However, the applicant's experienced senior counsel did not request an anti-tendency direction in relation to the relationship evidence, either during the charge conference or after the summing up. The applicant later sought leave to appeal on the ground that the absence of such a direction caused a miscarriage of justice.
Legal Issues
- Whether the trial judge was required to give an anti-tendency direction in relation to the relationship evidence, particularly the threats to kill and the specific threat to "cave in" the deceased's head.
- Whether there was a real risk that the jury engaged in impermissible tendency reasoning when using the relationship evidence.
- Whether the failure of experienced defence counsel to seek such a direction constituted a miscarriage of justice.
Decision
The Court of Criminal Appeal refused leave to appeal, with Davies J delivering the principal judgment and Bell CJ and Fagan J agreeing. The court confirmed that an anti-tendency direction is not required in every case where relationship evidence is admitted. Such a warning is only necessary where there is a significant risk that the jury might reason impermissibly from that evidence.
The court examined the trial as a whole and concluded there was no real chance, and no significant risk, that the jury used the relationship evidence to impermissibly reason that the applicant had a tendency towards a particular state of mind and therefore the requisite intention for murder. The threatening emails, including the "cave in" reference, were directly probative as relationship evidence going to motive, context, and the nature of the relationship. Any tendency reasoning arising from those threats would at most demonstrate a tendency to make threats when displeased, which was not the impermissible pathway of reasoning the applicant identified.
The court also noted the significance of the forensic choices made at trial. An accused is generally bound by counsel's forensic decisions, and the fact that one of the most experienced criminal barristers in the state did not seek the direction was a strong indicator that no real risk existed. The court identified plausible forensic reasons for that choice: seeking the direction could have drawn the jury's attention to the very reasoning the defence sought to avoid. Defence counsel had also himself relied on the relationship evidence in closing address to argue for a manslaughter verdict rather than murder. No rational forensic justification was lacking for the decision, and accordingly no miscarriage of justice was established.
Orders Made
- Extension of time to file the Notice of Appeal granted, to 8 February 2022.
- Leave to appeal refused pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
Key Takeaways
- An anti-tendency direction is not required in every case where relationship evidence is admitted; the obligation arises only where there is a significant risk that the jury might engage in impermissible tendency reasoning.
- An accused is generally bound by counsel's forensic choices at trial. It is only where no rational forensic justification can be discerned for a challenged decision that an appellate court will consider whether a miscarriage of justice has occurred.
- Where a real risk of impermissible tendency reasoning exists, the fact that counsel did not seek a direction will not alone prevent a miscarriage of justice finding; however, the experience of counsel who made that choice is a significant factor in the assessment.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the impugned relationship evidence here was directly probative of motive and context, and any tendency reasoning it might generate was limited to a tendency to threaten, rather than the impermissible pathway to inferring murderous intent.
- Seeking an anti-tendency direction carries its own forensic risk: as the High Court noted in Falzon, drawing attention to possible misuse of evidence may itself prompt the very impermissible reasoning a direction aims to prevent.
Legislation and Cases Referenced
Legislation:
- Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15
Cases:
- BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47
- Craig v The Queen (2018) 264 CLR 202; [2018] HCA 13
- Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; (2014) 316 ALR 206
- FB v R [2020] NSWCCA 137
- Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894
- KRM v R (2000) 206 CLR 221; [2001] HCA 11
- Medich v R [2021] NSWCCA 36
- R v Latu [2018] NSWSC 1659
- R v Latu (No 3) [2019] NSWSC 951
- The Queen v Falzon (2018) 264 CLR 361; [2018] HCA 29
- Vaoalii Toalepai v R [2009] NSWCCA 270