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Supreme Court 8 May 2023

R v Niguidula (No 3)

[2023] NSWSC 481

Assault & violenceHomicideDomestic & family violence
EVIDENCE ADMISSIONS CRIMINAL PROCEEDINGS TELEPHONE INTERCEPT RECORDINGS ADMISSIONS MADE ON THE TELEPHONE PROBATIVE VALUE

Citation: R v Niguidula (No 3) [2023] NSWSC 481
Court: Supreme Court of New South Wales
Date: 8 May 2023
Judge(s): Dhanji J

Background

The accused faced two counts on an indictment: one count of assault occasioning actual bodily harm (count 1, involving an alleged strike to the deceased's head with a LED lamp on 11 November 2019) and one count of murder (count 2, involving an alleged fatal stabbing on 17 November 2019). The deceased was the accused's long-term romantic partner, with whom she had been in a relationship since at least 2011.

Following the deceased's death, police obtained a surveillance device warrant and recorded telephone conversations between the accused and her other partner, Mr Saret. The conversations were conducted in Tagalog and translated into English. Six statements from those calls were identified by the Crown as admissions. The accused also faced a Crown application to use various items of evidence for tendency purposes.

Before the trial commenced, the accused sought pre-trial rulings on the admissibility of the recorded admissions and the proposed tendency evidence. Both parties adduced expert psychiatric evidence on the voir dire.

Legal Issues

  • Whether six recorded telephone statements by the accused were admissible as admissions, having regard to sections 90, 135, and 137 of the Evidence Act 1995 (NSW)
  • Whether expert psychiatric evidence about borderline personality disorder and dissociative amnesia affected the probative value or prejudicial effect of those admissions
  • Whether the deceased's hearsay statements about a scissors incident (tendency notice item B(3)) were admissible under section 65(2) of the Evidence Act
  • Whether various items of evidence had significant probative value to establish the Crown's asserted tendency of the accused to engage in violence towards the deceased while in a relationship, for the purposes of both count 1 and count 2
  • Whether tendency evidence had significant probative value to establish a broader tendency towards violence against male partners, relying also on conduct towards the accused's former husband
  • Whether count 1 itself (item B(5)) could be used as tendency evidence to prove count 1 under section 101(2) of the Evidence Act

Decision

Issue 1: Admissibility of admissions under section 137

The court found that none of the six statements constituted unambiguous confessions and that the absence of Mr Saret as a witness created some potential unfair prejudice, but not a danger sufficient to outweigh probative value (at [46]-[49]). Admission 1, in which the accused said the deceased would still be alive if she had given him "a chance to change," was capable of interpretation as an admission of responsibility and carried high probative value (at [93]-[98]). Admission 2, reflecting what appeared to be uncertainty about whether she had killed the deceased, had probative value as evidence inconsistent with innocence (at [99]-[103]). Admissions 4 and 5, including a statement that she "killed a person," were capable of being understood as acceptances of responsibility despite Dr Henderson's dissociative amnesia explanation (at [104]-[107]).

Admission 6, in which the accused expressed willingness to kill Mr Saret, was rejected. The court found its probative value in establishing the intensity of the accused's relationship with Mr Saret was outweighed by the danger of unfair prejudice arising from the implication of a lack of moral compass or control, particularly in the context of the deceased's death (at [108]-[110]). The objection to Admission 3, which was contingent on the outcome of the other rulings, was treated as withdrawn.

Issue 2: Psychiatric evidence and reliability of admissions

The court accepted Dr Henderson's diagnosis of borderline personality disorder and his opinion that the accused was likely in a dissociated state at the time of the alleged killing, though that opinion was premised on the accused having stabbed the deceased (at [50]-[57]). Dr Martin, retained by the Crown, was more circumspect about a definitive diagnosis but did not directly disagree with Dr Henderson. Medical notes indicating a 2007 diagnosis of borderline personality disorder substantially addressed Dr Martin's concerns (at [62]-[65]).

The court declined to treat Dr Henderson's view on the unreliability of the admissions as determinative of probative value. The assessment under section 137 is predictive and evaluative, and it remained open to a jury to reject Dr Henderson's explanation and accept instead that the accused's stated lack of recollection was malingering (at [82]-[86]). The availability of Dr Henderson to explain the context of the admissions reduced, rather than increased, the danger of unfair prejudice (at [97]).

Issue 3: Hearsay and the scissors incident (item B(3))

The court ruled the deceased's statements to Ms Eugenio and Ms Flavia Apostol about the scissors incident inadmissible. Neither the section 65(2)(b) exception (representation made when or shortly after the asserted fact occurred and unlikely to be a fabrication) nor the section 65(2)(c) exception (representation made in circumstances making it highly probable it was reliable) was satisfied (at [136]-[141]). The deceased had twice given an earlier, inconsistent account; the representation relied on by the Crown was made after Ms Eugenio pressed him; and the deceased had demonstrated a pattern of lying to women in his relationships. These circumstances undermined a finding that fabrication was unlikely (at [139]).

Issue 4: Tendency evidence in support of count 1

Items B(4) (assault with a mobile phone on 10 November 2019) and B(6)(iii) (the deceased blocking a knife resulting in wrist injuries, shortly before the charged offences) were admitted as tendency evidence to prove the accused's tendency to engage in violence towards the deceased using physical force and objects, in support of count 1 (at [156]-[157], [183]-[184]). Their temporal proximity to count 1 was a significant factor. Items B(1), B(2), B(6)(i), and B(6)(ii) were excluded as tendency evidence because they were temporally remote, overly general, or insufficiently specific (at [154]-[155]).

The court excluded count 1 itself (item B(5)) from use as tendency evidence to prove count 1, finding that its probative value did not substantially outweigh the prejudicial effect. With only three events comprising the relevant tendency evidence, and the charged event being identical to what the jury must ultimately prove beyond reasonable doubt, there was a real danger the jury would overestimate the significance of the tendency (at [180]-[182]).

Issue 5: Tendency evidence based on violence against former husband (category C) and in support of count 2

Evidence of violence against the accused's former husband (category C) was excluded. The relationship ended in 2013, leaving a gap of at least six years to the charged conduct, with no evidence of continuation of any tendency during that period (at [164]-[165]).

The court found that none of the tendency evidence had significant probative value in support of count 2 (murder). The previous assaults, even taken together, represented a very significant escalation from count 2: count 2 involved a fatal stabbing to the chest with a knife, and the prior conduct caused only limited injuries predominantly with objects not ordinarily regarded as weapons (at [169]-[171]). The fact that offences of actual bodily harm are relatively common does not establish a tendency supportive of a conclusion that a person committed a life-threatening assault on some other occasion (at [171]).

Issue 6: Tendency to create false stories about the deceased's injuries

The Crown's asserted tendency to create or recount false stories about how the deceased sustained visible injuries was found to lack significant probative value. Only two events supported the tendency, they were separated by approximately seven years, and covering up misconduct is common behaviour unlikely to be distinctive enough to satisfy section 97(1)(b) of the Evidence Act (at [159]-[161]).

Orders Made

  • Objection to Admissions 1, 2, 4, and 5 overruled.
  • Objection to Admission 3 not determined, treated as withdrawn as a result of the rulings on the other admissions.
  • Admission 6 rejected.
  • Evidence of items B(4) and B(6)(iii) in the Crown's tendency Notice of 6 March 2023 admitted to prove the accused had a tendency to act in the manner specified in paragraph 6(a)(i) of that Notice, in support of count 1.
  • The accused's objection to the Crown's reliance on tendency evidence is otherwise upheld.

Key Takeaways

  • Under section 137 of the Evidence Act, the assessment of whether probative value is outweighed by the danger of unfair prejudice is predictive and evaluative: a court conducting a pre-trial admissibility ruling does not resolve contested factual questions such as the reliability of expert psychiatric opinion, but instead assesses what inferences are available to the jury (at [82]).

  • Where a co-participant in a recorded conversation is unavailable to give evidence about context and tone, that procedural disadvantage can constitute relevant prejudice for the purposes of section 137, but it does not automatically lead to exclusion: the degree of prejudice must be weighed against probative value on the facts of each case (at [47]-[49], [80]).

  • Tendency evidence loses significant probative value when it relates to conduct of a substantially different nature and severity from the charged offence. Previous assaults causing actual bodily harm with improvised objects did not, on the facts here, establish a tendency probative of a fatal knife stabbing to the chest (at [169]-[171]).

  • The Supreme Court held that using an element of a charged offence as tendency evidence to prove that same count carries a heightened risk of the jury overestimating the significance of the tendency, particularly where the charged event dominates the pool of tendency evidence and directions to the jury may be insufficient to cure the prejudice (at [178]-[182]).

  • For the section 65(2)(b) hearsay exception to apply, a representation must have been made when or shortly after the asserted fact occurred and in circumstances making fabrication unlikely: a statement made after a person had given two earlier inconsistent accounts and was pressed by a witness for the truth does not satisfy the fabrication limb, even if a consistent representation was also made to another person (at [136]-[139]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) , s 23A
- Criminal Procedure Act 1986 (NSW), ss 130, 130A, 139, 161A
- Evidence Act 1995 (NSW), ss 90, 135, 137, 139, 192A

Cases
- 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 573; [1990] HCA 56
- Taylor v R [2020] NSWCCA 335
- The Queen v Dickman (2017) 261 CLR 601; [2017] HCA 24
- The Queen v Swaffield; Pavic v The Queen (1998) 192 CLR 159; [1998] HCA 1
- Williams v R [2000] FCA 1868; 119 A Crim R 490