Supreme Court New South Wales Medium Neutral Citation: R v Niguidula (No 6) [2023] NSWSC 501 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 application to exclude Admissions 4 and 5 is refused. Catchwords: EVIDENCE – admissions – criminal proceedings – where fresh indictment presented – application to revisit earlier rulings – relevance to expert's opinion – application refused Legislation Cited: Crimes Act 1900 (NSW), s 23A Evidence Act 1995 (NSW), s 137 Cases Cited: R v Niguidula (No 3) [2023] NSWSC 481 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: In this matter objection was taken by the accused to a series of statements made by the accused and relied upon by the Crown as admissions. Those various statements were given the appellations of Admission 1 through to 6. I ruled on those six admissions in R v Niguidula (No 3) [2023] NSWSC 481. At the time I gave this decision in relation to the six admissions, the accused had been arraigned on an indictment charging her with offences of assault occasioning actual bodily harm and murder and had pleaded not guilty to both those offences. 2. Since that time, the accused has pleaded guilty to what was count 1 on the indictment, the offence of assault occasioning actual bodily harm, and has pleaded not guilty to murder but guilty to manslaughter in relation to what was count 2. 3. As a consequence of that course of events, a fresh indictment was prepared containing only the count of murder. The accused was arraigned before the jury panel on that indictment and pleaded not guilty to murder but guilty to manslaughter. The Crown did not accept that plea in full satisfaction of the indictment and a jury was empanelled. The jury has been sent away and is to return on Monday, 15 May 2023, when it is anticipated the trial will proceed before the jury. In the interim, the parties have been working to resolve outstanding evidentiary issues. The accused has, before me this morning, sought to re-ventilate the decision previously made in respect of what were labelled "Admissions 4 and 5" on the basis that, the issues having changed, the evidence was no longer admissible. I can accept the general proposition that the relevance and consequent admissibility of evidence is dependent upon the matters in issue in any particular trial. I can accept, therefore, that, as a result of a change in those issues, it may be appropriate to revisit earlier rulings. 4. In relation to this matter, the relevant admissions are set out in R v Niguidula (No 3) (at [100]): [Accused]: You son of a bitch, Jan Lei! You asked me to kill Ronnie, Jan Lei. You son of a bitch. [Mr Saret]: (Scoffs) The accused also objected to the following evidence, categorised as admission 5: [Accused]: You son of a bitch! Don't make amends with me, don't fix this. You son of a bitch, don't make amends with me. You bitch. You son of a bitch, I killed a person. You bitch! You son of a bitch. … [Accused]: You son of a bitch! Don't make amends with me, don't fix this. You son of a bitch, don't make amends with me. You bitch. You son of a bitch, I killed a person. You bitch! You son of a bitch. 1. Insofar as that evidence is capable of sustaining an inference that the accused did kill the deceased, it was clearly relevant when that matter was in issue. The question before me now is whether the evidence maintains any relevance with that issue having now been resolved by the accused's plea which, in essence, admits the accused's responsibility for the act of killing. 2. It is relevant to note that, having regard to the accused's plea to manslaughter, remaining in issue in this trial is proof of the requisite intent on the part of the accused, that is, that she did the act with an intention to cause grievous bodily harm or to kill. Also in issue is the accused's mental state at the time of the killing and, in particular, whether, in the event the elements of murder are pressed, the partial defence of substantial impairment in s 23A of the Crimes Act 1900 (NSW) is available to her. I do not propose to recount in any detail the evidence in relation to that issue. Suffice to say that Dr Henderson, a forensic psychiatrist, is relied upon by the accused. Dr Henderson has given an opinion that the accused suffers from a borderline personality disorder which, in Dr Henderson's view, is an abnormality of mind. There may be some controversy about that proposition but, for the purposes of this argument, I will accept that there is evidence of an abnormality of mind. 3. The next and important step in Dr Henderson's opinion is the impact of that abnormality of mind on the accused. Dr Henderson has given an opinion as to this. Included in that opinion is his view that the accused was acting in a dissociative state at the time of relevant events, that being the product of various external factors triggering an emotional state leading to a combination, as I understand it, of rage, but also, as I have said, dissociation. There is some evidence to suggest that the accused, despite her admission to the act of killing made for the purposes of this trial, did not, at the time or shortly after the killing, have a memory of the event. My understanding is that this is supportive of Dr Henderson's opinion with respect to the accused being in a dissociative state and, in turn, supportive of his opinion more generally. Evidence that would suggest that the accused did, in fact, have a memory of events is, therefore, relevant given its capacity to impact on the opinion of Dr Henderson. On that basis, the admissions labelled admissions 4 and 5 are, in my view, relevant. 4. It was further argued that, insofar as they are relevant, their probative value is slight, and that probative value is outweighed by the danger of unfair prejudice rendering the statements inadmissible pursuant to s 137 of the Evidence Act 1995 (NSW). I accept that there is some prejudice in the language used by the accused, in particular, her repetition of the words, "You son of a bitch," to Mr Saret. I have ruled out other admissions relied upon by the Crown involving continued repetition of these words in circumstances where it was my view that they added little and, thus, the prejudicial effect outweighed the probative value. In the context of the particular admissions I am currently concerned with, the repetition of those words, whilst prejudicial, does not rise to the point where I would regard it as a danger of any significance in the context of the events surrounding them. 5. I am of the view that the danger of any unfair prejudice arising from these statements does not outweigh the probative value of the evidence and the application to exclude Admissions 4 and 5 is refused. ********** 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