Supreme Court New South Wales Medium Neutral Citation: R v Niguidula (No 5) [2023] NSWSC 500 Hearing dates: 11 May 2023 Date of orders: 11 May 2023 Decision date: 11 May 2023 Jurisdiction: Common Law - Criminal Before: Dhanji J Decision: 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. Catchwords: EVIDENCE – criminal proceedings – where defence propose to make a number of admissions – whether Crown can lead further evidence as to a fact that has been admitted by the accused – blanket ruling sought – blanket ruling overruled – example fact – Crown seeking to rely on photograph in addition to bare fact admitted – photograph gives additional layer of meaning to bare fact – Crown entitled to tender photograph Legislation Cited: Evidence Act 1995 (NSW) s 135, 137, 184, 191 Cases Cited: 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 Category: Procedural rulings Parties: Rex (Crown) Jenny Niguidula (Accused) Representation: Counsel: C Taylor (Crown) A Boe (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Murphy's Lawyers (Accused) File Number(s): 2019/390005; 2019/365704 Publication restriction: Nil Ex Tempore Judgment (Revised) 1. HIS HONOUR: On 9 May 2023, the accused was arraigned before the jury panel on an indictment charging her with the murder of Rhonie Apostol on or about 17 November 2019. 2. The accused pleaded not guilty to murder, but guilty to manslaughter and a jury was empanelled. As a result of the need to resolve a number of pre-trial issues, the jury was excused and is to return on Monday 15 May 2023 when it is anticipated the trial will continue before the jury. 3. The accused had originally pleaded not guilty to an indictment containing, as the first count, a charge of occasioning actual bodily harm and, as the second count, the charge of murder. On Monday of this week, the accused entered a plea of guilty to the charge of assault occasioning actual bodily harm and a plea of not guilty to murder, but guilty to manslaughter on the charge of murder. That plea with respect to the charge of murder was not accepted by the Crown in full satisfaction of the indictment, necessitating the trial. Following those pleas, a new indictment was presented containing only the charge of murder. The accused pleaded to that indictment, as I have already indicated. 4. During the period in which the jury has been absent, the parties have been endeavouring to resolve the material to be placed before the jury to resolve the matters in issue. The defence proposes making a number of admissions pursuant to s 184 of the Evidence Act 1995 (NSW). The defence has indicated an objection to the Crown leading any further evidence as to a fact that has been admitted by the accused. 5. Obviously enough, any evidence sought to be led by the Crown, if the subject of an objection, will require me to consider that objection and the consequent admissibility of the evidence objected to. It is otherwise not possible for me to provide something in the nature of an advisory opinion as to the position that will be taken with respect to any evidence sought to be led by the Crown in relation to which there is either an admission pursuant to s 184 of the Evidence Act or, indeed, potentially an agreed fact pursuant to s 191. 6. Whilst I understand that there are currently a number of issues between the parties, in order to overcome the present problem of a blanket ruling in the absence of any particular factual circumstances, I have been provided with an example fact, together with evidence that the Crown wishes to lead that, in effect, reiterates that fact, but with additional material going before the jury. 7. The example fact in which the accused will admit pursuant to s 184 of the Evidence Act is in the following terms: "At 1.38pm the accused going through customs and immigration." 1. It is somewhat unclear as to why the statement is in that grammatical form. It may be that it is better phrased as "at 1.38pm the accused went through customs and immigration", or it may be that the sentence makes more sense in its full context proposed to be before the jury. It matters little to this determination. 2. Despite that agreement, the Crown additionally proposes to tender a still image taken from Closed-Circuit Television Footage (CCTV) that appears to show the accused at the immigration desk of the Sydney International Airport, with a date and timestamp and an indication that it was taken from CCTV footage at the airport. 3. The accused submits that the Crown ought not to be able to lead that additional evidence, essentially taking the position that the fact having been admitted, the additional evidence is not relevant or otherwise should be excluded in the dictates of fairness, the discretion in s 135 of the Evidence Act, or mandatory exclusion pursuant to s 137. 4. Different views have been expressed in relation to the effect of s 184 of the Evidence Act. There have been views expressed that are supportive of the position taken by the defence, which would limit the ability of the Crown to tender further evidence. It is not suggested that such views are binding on me and, indeed, binding authority in this State is to the contrary. That is not to say that that authority obliges the admission of any individual piece of evidence where it largely mimics an admitted fact. 5. My instinctive reaction to the debate is that while a fact might be shortly stated, there are potential subtleties and nuances to many such facts. To take a common enough example, reading a book might allow one to recall no more than general propositions with respect to what one has read, so, on its face, much time might be saved by reading only those general propositions able to be recalled. However, there plainly remains a benefit in having read the entire book because the general propositions recalled will be imbued with a depth they might not otherwise possess in the absence of having spent time with the facts, concepts, or ideas presented as a result of reading the entire book. The relevance of this observation will be dependent on the fact specific situation under consideration. 6. I indicated that there is some support for the accused's position. A narrow view of the Crown's entitlement to lead evidence in addition to an admitted fact was expressed by Heydon J in Stubley v the State of Western Australia (2011) 242 CLR 374; [2011] HCA 7. His Honour there said (at [94]): "…there is substantial authority for the view that once an admission of a matter of fact has been made by the defence, not only is it not necessary for the prosecution to call further evidence on that matter of fact, but it is not open to it to do so, unless that evidence is relevant to another issue." (footnotes omitted) 1. Views contrary to the above have been expressed which are consistent with what I indicated was my instinctive reaction to the subject. In R v JGW [1999] NSWCCA 116, the appellant had, at trial, sought to proffer admissions under s 184 in lieu of the tender of a complete record of interview. The Court said (at [42]-[44]): "42 The Crown was entitled to prove its case as it wished. It was not bound to accept the offer of bare admissions from the appellant in lieu of the tender of the record of interview, nor would it have been sensible to edit out the questions and answers that amounted to denials of the specific incidents of misconduct alleged. The questions and answers identified above drew their significance from the content in which they were put, and to have edited the ERISP further would have produced a very distorted interview. Moreover, upon my assessment, it would have been more likely to have led to a charge of unfairness, since the appellant would have been entitled to have the balance restored by the denials. The present case is very different from those cited in argument where material that was truly irrelevant, or became the source for cross examination on peripheral matters, or was otherwise prejudicial, was admitted. 43 Moreover, the Crown was unable to determine in advance what case the defence would call, or whether succinct admissions without relevant detail, would have been sufficient for its purposes. In fact, as events transpired, it can be seen that a bare admission, for example, that the appellant had a tattoo "the baby maker" on his penis, would have fallen short of the proof that the Crown required. Whether it would or would not have been allowed to call a case in reply, or to reopen its case, is problematic. 44 I do not consider that, as a matter of principle, the Crown should be required to accept admissions in lieu of a record of interview, where the latter can be seen to contain evidence that qualifies as relevant, and where there is no occasion, otherwise, for a discretionary exclusion under ss 90, or 135 to 137 of the Act. It is well settled that the fact that formal admissions have been made does not, of itself, preclude the Crown from adducing further evidence on the issues which are the subject of the admissions: Smith (1981) 1 NSWLR 193. There is no reason for assuming that enactment of the Evidence Act has altered that principle: Popovic (Court of Criminal Appeal New South Wales 25 March 1996 (per McInerney and Abadee JJ; Hulme J not deciding). This ground has accordingly not been made good." 1. See also R v Smith [1981] 1 NSWLR 193 at 194-195; R v Frazer [2002] 128 A Crim R 89; [2002] NSWCCA 59 at [45]-[46]. 2. As I have indicated, it is not suggested that the observations of Heydon J in Stubley v The State of Western Australia or any other expression of a view to the same effect is binding on me. Rather, despite the differing views that have been expressed, the binding authorities in this State appear to me to establish that there is no bar to the Crown leading evidence to prove matters that are the subject of admissions by the accused. 3. I am of the view that the Crown should not necessarily be held to bare facts admitted by the accused. This is not to say that the Crown is entitled to prove its case as it wishes. Any additional evidence will, of course, be subject to discretionary exclusion, or, if s 137 of the Evidence Act applies, mandatory, exclusion. There is, in the context of this debate, much to be said for the observations of Hamill J in the R v Brooks [2017] NSWSC 188. His Honour, having considered the issue concluded (at [23]): "More commonly, it may be that the probative value of the evidence is reduced [I interpolate as a result of the defence admission] and, if the evidence would result in an undue waste of time (s 135) or create unfair prejudice (s 137), it may be inadmissible in the exercise of discretion." 1. In the present case, the photograph shows the accused, at what appears to be the immigration desk at Sydney International Airport. Her face is clearly visible to the camera. It is not suggested that anything material can be drawn from her expression. Indeed, having regard to the fact that this is some seven days before the actual stabbing of the deceased, any concern that the jury might seek to draw something from her expression is not a real one. But what is clear from the photograph is that the accused is alone in the Arrivals Hall. That is consistent with evidence of her having waited some time before passing through immigration. I appreciate that that is all part of what is agreed to by the accused. 2. However, in the circumstances of this case, where the accused had travelled with the deceased, with whom she was in a relationship, a matter such as the photograph sought to be led by the Crown gives an additional layer of meaning to the bare fact of her arrival at a particular time. I am of the view that 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 June 2023