R v Chatimba (No 1) [2021] NSWSC 204

Supreme Court New South Wales

Medium Neutral Citation: R v Chatimba (No 1) [2021] NSWSC 204 Hearing dates: 8-9 March 2021 Date of orders: 10 March 2021 Decision date: 10 March 2021 Jurisdiction: Common Law Before: Wright J Decision: Evidence admitted in part Catchwords: EVIDENCE – Tendency evidence - Accused charged with murder – Defence of self-defence or defence of another – Where counsel for the accused sought to adduce evidence of previous instance of violence on the part of the deceased as tendency evidence – Objection by Crown – Whether evidence had significant probative value – Evidence admitted in part Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 McPhillamy v The Queen [2018] HCA 52; 92 ALJR 104 R v Sharpe (No 5) [2021] NSWSC 52 R v Wilson (No 3) [2017] NSWSC 1680 Category: Procedural rulings Parties: Regina (Crown) Nathan Chatimba (Accused) Representation: Counsel: G Christofi (Crown) A Evers (Accused)

Solicitors: Director of Public Prosecutions (Crown) Bannisters Lawyers (Accused) File Number(s): 2018/247460

Judgment 1. The accused, Mr Chatimba, has pleaded not guilty to the murder of Peni Apikotoa (the deceased). There is, however, no issue that it was Mr Chatimba who inflicted the fatal blows on the deceased with a knife. 2. As I understand the accused's case, the deceased was known to the accused and his former partner and had been drinking at a hotel, where he was contacted by the deceased and the accused's former partner by telephone. As a result of that contact, the deceased thought that the accused's former partner, whom he knew as a friend, was being bashed. The accused's contention is that the deceased, in an angry state, went to the house where the accused was, which was near the hotel, and that the stabbing occurred as part of an altercation initiated by the deceased by punching the accused. While attempting to defend himself at that time, the accused says that he armed himself with a knife and the stabbing occurred when the deceased continued to swing at the accused and the accused was simply jabbing the knife out to try and keep the deceased back. 3. By a tendency notice dated 8 March 2021, the accused seeks to adduce evidence of a previous incident involving the deceased on the basis that such evidence demonstrates a tendency on the part of the deceased to be violent when he had been drinking, to throw punches without warning and then to continue to punch. 4. The tendency notice specifically identified the relevant tendency on the part of the deceased and the substance of the evidence in the following terms: "The tendencies that the accused seeks to adduce evidence of, prove, and rely upon, are that [the deceased] had a tendency a. To be physically violent when drinking b. After consuming alcohol, to confront a person by physical approach c. To use his fists in a confrontation to assault the person d. To throw punches at a victim's face without warning. e. To throw more than one punch. Pursuant to clause 5(2)(b), Evidence Regulation 2020, the evidence proposed to be adduced is from Detective Fokes (the office r in charge) as particularised in the criminal record of [the deceased], Facts sheet under H 62616784, COPS entry E58967275 (attached), namely: (1) At about 7pm on 17 September 2015 [the deceased] confronted Tobias Stone at the Blue Cattle Dog Hotel Mamre Road St Claire(hereinafter 'the victim'). [The defendant] approached the victim in the car park after the victim left the public bar and punched him to the face. The victim stumbled backwards and [the defendant] punched the victim a second time to the face." 1. The criminal record of the deceased attached to the notice took the form of a "Criminal History – Bail Report". This report contained in large measure information not relating to the incident on 17 September 2015. The information relating to that incident was three entries, all for 30 January 2016, recording that in respect of a charge of robbery: the deceased was committed for trial; "bench warrant to issue: warrant revoked"; and "community service order: 500 hours cumulative …". 2. The facts sheet in relation to H 62616784 contained information that went beyond the tendency evidence sought to be adduced (as described in par (1) of the tendency notice). The information that was covered by par (1) was: "On 17th September 2015 the [deceased] was at the Blue Cattle Dog Hotel on Mamre Road, St Clair drinking with a group of friends. About 6:45pm on Thursday, 17th September 2015 the victim [redaction] attended the Blue Cattle Dog Hotel. The victim parked his vehicle in the car park adjacent to the accommodation entrance. The victim entered the hotel through the door near the barber shop which is located next to the accommodation entrance. Shortly after the victim was walking back to his vehicle. The [deceased] got up from his table in the beer garden and approach the victim outside the door on the western side of the Hotel. The [deceased] said to the victim 'Where you fucking been?' and referred to an altercation that had occurred a few months prior. The victim replied something to the effect of 'don't worry about it' the [deceased] became aggressive and punched the victim once with a closed fist to his mouth. The victim stumbles slightly be for the accused punched the victim a second time to his forehead causing the victim to fall to his knees. The victim stood back up. …." 1. The COPS entry in respect of the incident also includes a substantial amount of material that went beyond describing the incident but the relevant material was as follows: "About 7.00pm on Thursday, 17th September 2015 the victim Tobias Stone attended the Blue Cattle Dog Hotel on Mamre Road St Clair to have a drink with a friend. … When he had finished the victim told his friend 'I'm off' in Exeter the hotel through the same door he had entered. The victim was walking to his vehicle [XXX] a green Hyundai Sonata when he was approached by the POI he knows as 'Bennie'. The POI said to the victim 'Where you fucking been?' and referred to a prior altercation that had occurred a few months prior. The victim replied something to the effect of 'What are you talking about, it was nothing'. The POI became aggressive and punched the victim once with a closed fist to his mouth. The victim stumbled slightly before the POI punched the victim a second time to his forehead causing the victim to fall to his knees. The victim stood back up …". 1. The COPS entry identified the POI as the deceased and his level of intoxication was recorded as "slightly affected". It also indicated that the incident had not been captured on CCTV and that there were currently no witnesses to the incident who were known to police. It was also recorded in the COPS entry as follows: "it should be noted that although the victim has provided a statement to police he has not been forthcoming with information relating to prior involvement with the POI and states he only met him through a friend. In addition he has not been forthcoming with what conversation took place prior to the assault or what the altercation from a few months earlier related to." 1. Mr Evers of counsel who appears for the accused informed the Court that he did not rely on any of the material in the documents attached to the tendency notice beyond that which went to the incident in question. As I understood it, this was the material that I have identified in the preceding paragraphs and it can be referred to as the "tendency evidence" for the purposes of these reasons. 2. The Crown tendered five statements from witnesses intended to be called in the trial as well as a transcript of the ERISP given by the accused. This material demonstrated that there was substantial evidence of the peaceable and non-violent nature of the deceased which was inconsistent with the deceased having a tendency to violence.