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Supreme Court 9 May 2023

R v Niguidula (No 4)

[2023] NSWSC 486

Homicide
EVIDENCE CRIMINAL PROCEEDINGS TELEPHONE INTERCEPT RECORDINGS ADMISSIONS MADE ON THE TELEPHONE CONVERSATIONS ABOUT DECEASED RELEVANCE

Citation: R v Niguidula (No 4) [2023] NSWSC 486
Court: Supreme Court of NSW
Date: 9 May 2023
Judge(s): Dhanji J

Background

The accused faced trial for murder, arising from the fatal stabbing of the deceased on 17 November 2019. In the lead-up to trial, police had recorded a series of telephone conversations between the accused and a man referred to as Mr Saret, conducted in the Tagalog language and translated into English. These intercept recordings formed part of the Crown's evidence.

Before the trial commenced, the accused challenged the admissibility of five translated intercept products, referred to as Products 4, 81, 609, 657, and 659. Each product captured a separate post-killing conversation between the accused and Mr Saret. The court heard argument on the voir dire (a preliminary hearing on admissibility conducted in the absence of the jury) on 4 and 5 May 2023.

The accused's plea position shifted during proceedings. She ultimately pleaded guilty to manslaughter but maintained a not guilty plea to murder, with the Crown declining to accept the manslaughter plea in full satisfaction of the indictment. A new indictment containing only the murder charge was presented on 9 May 2023, and a jury was empanelled.

Legal Issues

  • Whether each challenged passage in the five intercept products was relevant within the meaning of section 55 of the Evidence Act 1995 (NSW)
  • Whether, even where relevant, the probative value of any passage was outweighed by the danger of unfair prejudice under section 137 of the Evidence Act 1995 (NSW), such that the evidence should be excluded
  • What weight, if any, should be given to the unavailability of Mr Saret as a witness when assessing the danger of unfair prejudice

Decision

Product 4: The accused objected to a passage discussing the deceased, including references to the accused "planning life" with the deceased and the deceased "asking for nine months." The court found the passage relevant to the nature of the relationship between the accused and the deceased, and specifically to what may have passed between them before the stabbing, which in turn bore on the accused's state of mind at the time of the act causing death. No further exclusionary rule was raised, and the objection was overruled (at [13]-[15]).

Product 81: Two passages were challenged, each involving statements by the accused that she might kill Mr Saret or would have preferred to kill him rather than the deceased. The court accepted these passages were relevant: the first suggested the accused might kill out of anger in the same way she had killed the deceased, and the second spoke to the nature of her two relationships (at [19]). However, the court excluded both passages under section 137. The probative value of each was low, and the statements risked portraying the accused in a particularly poor light because of her acknowledged responsibility for the killing, in a manner disconnected from any legitimate probative purpose (at [20]-[22]).

Product 609: The court dealt with two separate passages. The first, in which the accused appeared to reflect on her interactions with the deceased in a way capable of being understood as an admission about events preceding the stabbing, was admitted as relevant to the events leading to the fatal act, with no other exclusionary rule raised (at [23]-[24]). The second passage, involving references to a person called "Vincent" and the suggestion that "it was preferred that the deceased was gone," was excluded under section 137. Its probative value was relatively slight, the meaning was obscure, and there was a risk the jury would treat it as evidence of premeditation when the killing was not alleged to have been premeditated. The unavailability of Mr Saret, who might have been able to clarify the references, also weighed in favour of exclusion (at [25]-[26]).

Products 657 and 659: Product 657 recorded the accused's anger at Mr Saret for failing to delete messages between them. The court admitted the initial passage, which contained the accused's statement that the messages revealed she was separating from Mr Saret. This was relevant to the nature of her relationship with the deceased, and combined with other evidence that the deceased intended to leave her, was highly relevant to the accused's emotional state before his death (at [27]-[30]). The remainder of Product 657 was excluded under section 137, as repeated and apparently hostile expressions of anger added little probative value and carried a real risk of unfair prejudice, compounded by the limitations of translation (at [30]-[31]). Product 659, a continuation of the same angry exchange in which the accused threatened Mr Saret with consequences if messages were produced in evidence, was excluded in its entirety for substantially the same reasons (at [32]).

Orders Made

  • Product 4: objection to the passage at Exhibit VD-C, p 21, overruled; passage admitted.
  • Product 81: objection to passages at Exhibit VD-C, pp 87 and 92 upheld; those portions rejected.
  • Product 609: objection to the passage at Exhibit VD-C, p 188, overruled; that passage admitted. Objection to the passage at Exhibit VD-C, p 194, upheld; that portion rejected.
  • Product 657: objection to the passage at Exhibit VD-C, pp 197-203 (inclusive) rejected; that portion admitted. Objection to the remainder at pp 204-215 upheld; those pages rejected.
  • Product 659: objection upheld; entire product rejected.

Key Takeaways

  • Under section 137 of the Evidence Act 1995 (NSW), even relevant evidence may be excluded where its probative value is outweighed by the danger of unfair prejudice. In this case, the Supreme Court applied that test carefully to each challenged passage rather than to the intercept products as a whole.

  • Where an accused has acknowledged responsibility for a killing, statements capable of portraying the accused in a similarly violent light in relation to other persons carry a heightened risk of unfair prejudice that may be disproportionate to their probative value (at [20]-[21]).

  • The unavailability of a key participant in a recorded conversation can increase the danger of unfair prejudice, particularly where the meaning of the conversation is obscure and the absent person might otherwise have explained it (at [26]).

  • Evidence of an accused's emotional state and significant personal relationships in the period immediately following a killing may be relevant, not merely to the fact of the act, but to the nature of the accused's state of mind at the time (at [14], [29]).

  • Where intercepted conversations are translations from another language, the court took into account the limitations of translation when assessing the risk that repeated hostile language on the page might not accurately reflect the idiomatic usage understood by the original speakers (at [30]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 55, 56, 137, 192
- Criminal Procedure Act 1986 (NSW), ss 130, 130A, 139

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