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Supreme Court 11 May 2023

R v Niguidula (No 5)

[2023] NSWSC 500

Homicide
EVIDENCE CRIMINAL PROCEEDINGS BLANKET RULING SOUGHT BLANKET RULING OVERRULED EXAMPLE FACT CROWN ENTITLED TO TENDER PHOTOGRAPH

Citation: R v Niguidula (No 5) [2023] NSWSC 500
Court: Supreme Court of New South Wales
Date: 11 May 2023
Judge(s): Dhanji J

Background

The accused stood trial for the murder of a man with whom she had been in a relationship, following the Crown's refusal to accept her plea of guilty to manslaughter in full satisfaction of the indictment. A new indictment charging only murder was presented, and the accused pleaded not guilty. The jury was empanelled but then excused while the parties resolved a series of pre-trial issues.

As part of trial preparation, the defence indicated it would make a number of formal admissions under s 184 of the Evidence Act 1995 (NSW). The defence also took the position that, where an admission had been made, the Crown should be prevented from leading any further evidence directed at the same fact.

Unable to give a blanket ruling in the abstract, the court worked from a concrete example: the defence proposed admitting that the accused passed through customs and immigration at Sydney International Airport at a particular time, but objected to the Crown also tendering a CCTV still image showing the accused at the immigration desk on the same occasion.

Legal Issues

  • Whether an admission made by the accused under s 184 of the Evidence Act 1995 (NSW) bars the Crown from leading further evidence directed at the same fact
  • Whether a blanket ruling to that effect could or should be given
  • Whether the specific CCTV photograph was admissible in addition to the admitted fact, having regard to ss 135 and 137 of the Evidence Act

Decision

Issue 1: Blanket ruling refused

Dhanji J declined to give a blanket ruling that would prevent the Crown from leading further evidence whenever an admission under s 184 had been made (at [5]). Any individual piece of evidence that the Crown seeks to lead remains subject to objection, and admissibility must be assessed in its particular factual context (at [5]-[6]).

Issue 2: Effect of a s 184 admission on the Crown's right to lead further evidence

His Honour noted that differing views have been expressed on this question. A narrower approach, associated with observations by Heydon J in Stubley v The State of Western Australia (2011) 242 CLR 374, would limit the Crown's ability to lead evidence beyond the admitted fact (at [13], [16]). However, those observations are not binding in New South Wales, and the binding authorities in this State, including R v JGW [1999] NSWCCA 116, establish that no absolute bar exists (at [16]). The court observed that a brief statement of fact may conceal meaningful nuance, much as a summary of a book cannot replicate what is absorbed from reading the whole (at [12]).

The court held that the Crown is not necessarily confined to bare admitted facts, but any additional evidence remains subject to discretionary exclusion under s 135 or mandatory exclusion under s 137 of the Evidence Act (at [17]).

Issue 3: Admissibility of the CCTV photograph

Dhanji J found the CCTV still image admissible in addition to the formal admission (at [19]). The photograph showed the accused alone at the immigration desk, which was consistent with evidence she had waited some time before clearing immigration (at [18]). Given that the accused had travelled to Australia with the deceased, the photograph added a meaningful layer of context to the bare admitted fact of her arrival time, beyond what the admission alone conveyed (at [19]).

Orders Made

  • The Crown is entitled to tender the still shot from the CCTV footage apparently showing the accused at the immigration desk in the Arrivals Hall at Sydney International Airport on 10 November 2019.

Key Takeaways

  • A formal admission under s 184 of the Evidence Act 1995 (NSW) does not, as a matter of law in New South Wales, automatically bar the Crown from leading additional evidence directed at the same fact (at [16]).
  • Binding authority in New South Wales, including R v JGW [1999] NSWCCA 116, supports the view that the Crown retains the right to prove its case beyond bare admitted facts, notwithstanding the narrower approach suggested in Stubley v The State of Western Australia (2011) 242 CLR 374 (at [13], [16]).
  • Any additional Crown evidence tendered alongside an admission remains subject to challenge: it may be excluded under the discretionary power in s 135 or the mandatory exclusion provision in s 137 of the Evidence Act (at [17]).
  • Where additional evidence gives a richer or contextually distinct meaning to an admitted fact, rather than merely repeating it, the court is less likely to find that it should be excluded on fairness grounds (at [18]-[19]).
  • No blanket pre-trial ruling can be given about the Crown's entitlement to lead evidence beyond admissions; each disputed piece of evidence must be assessed on its own facts and circumstances (at [5]-[6]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW) s 135, 137, 184, 191

Cases
- Stubley v The State of Western Australia (2011) 242 CLR 374; [2011] HCA 7
- R v JGW [1999] NSWCCA 116
- R v Smith [1981] 1 NSWLR 193
- R v Frazer [2002] 128 A Crim R 89; [2002] NSWCCA 59
- R v Brooks [2017] NSWSC 188