R v Niguidula

The basis for the objections

1. Before dealing with the individual objections, it is convenient to say something with respect to the bases on which objection is taken. In relation to some conversations, the objection is on the basis of relevance. Section 55 of the Evidence Act 1995 (NSW) provides: 55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to - (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence.
2. Evidence that is not relevant is not admissible: Evidence Act, s 56. Conversely, subject to the operation of other exclusionary rules, relevant evidence is admissible.
3. In some instances, objection is additionally taken on the basis that the probative value of the evidence is outweighed by the danger of unfair prejudice: Evidence Act, s 137. I have set out the principles to be applied when considering both the probative value and the prejudicial effect of proposed evidence in my earlier judgment of R v Niguidula (No 3) (at [63]-[77]). I will not repeat that discussion here. Additionally, I adopt what I there said about the unavailability of Mr Saret with respect to the danger of unfair prejudice to the accused: see [47]-[49].
4. I turn then to a consideration of the individual calls the subject of objection.

Product 4

1. The accused objects to a passage in this Product, which is pressed by the Crown. The whole of the transcript is 26 pages. I set out below the portion of the translation, with the part objected to underlined: [1] "[Accused]: And you're feeling that if I hope for something, that 'maybe', I don't know. I didn't say it. If I said it directly to you, he asked for nine months. If I said it directly to you, he asked for nine months. You would throw it back at me about those nine months? Weren't you lashing out at me about it last night? That I was planning life with him, in those nine months? Hello? You were lashing out at me last night that he had changed, that I was planning with him. You are there. You son of a bitch! He was asking for nine months just to make up to me, everything.
2. I have included the first paragraph to provide context to the portion objected to. Having regard to the whole of the call, the subject of the conversation is the deceased, or at least this inference is readily available. The statement "[w]eren't you lashing out at me about it last night? That I was planning life with him" suggests that Mr Saret had "lashed out" at the accused on the basis that she was "planning life" with the deceased. This suggests that she had chosen the deceased for her future, possibly over Mr Saret. This might be understood in the context of the accused seeking to adopt a child, and choosing a father for that child. The choice by the accused of the deceased over Mr Saret is relevant to the relationship between the accused and the deceased. In particular, it is relevant to the response of the accused, in the event that the deceased told her he wanted to end their relationship, a matter suggested by other evidence. The statement that he was "asking for nine months" (which appears in the portion objected to) suggests that the deceased was asking for more time to work matters out. This is again relevant to the relationship between the accused and the deceased, but more pertinently, is relevant to what passed between them prior to the stabbing of the deceased. This, in turn, has the capacity to bear on the accused's state of mind at the time of the act causing death.
3. The evidence is relevant on the basis set out above. No further objection was taken to this evidence. It is admissible.
4. Before leaving Product 4, I note that an additional passage at page 26 of the transcript of Product 4 was also objected to, [2] but is no longer pressed by the Crown.

Product 81

1. The accused objects to the following utterances of the accused: [3] "[Accused:] Bitch, will your attitude change? Bitch, I will inadvertently kill you. It might be inevitable that I might kill you. If we are married, I might kill you- because I'm furious with you. Because, you can make me angry to the limit."
2. And also: [4] "[Accused]: But, no- I reminded you about- What time did it finish, go ahead? Bitch! I'd rather kill you, truth to tell."
3. Objection is firstly taken on the basis of relevance. Understood in context, these passages are relevant. The first suggests that the accused might kill Mr Saret out of anger, inferentially, as she had done to the deceased. While the fact of killing is no longer in dispute, the nature of any emotion prompting the killing is relevant. In the second passage, the statement that she would "rather kill" Mr Saret may be understood as an admission that she would prefer to have killed Mr Saret than the deceased. This not only amounts to an admission of killing the deceased (a matter no longer in issue) but also speaks to the nature of the two relationships, a matter which is relevant to the accused's motivations.
4. Objection to these passages was also made pursuant to s 137 of the Evidence Act. While the evidence is relevant, I do not regard the probative value to be high. The first statement amounts to little more than the accused telling Mr Sarat that he is making her so angry she might kill him. Further, the evidence adds little to other evidence in the case that the accused was angry or, to use Dr Henderson's word, "enraged". The real issue is likely to be the nature and source of such rage and its impact on the accused. Ordinarily, statements such as that relied upon by the Crown here are easily dismissed as idle threats. In the present context however, the threat reflects particularly poorly on the accused, given her now acknowledged responsibility for killing the deceased a relatively short time before. In other words, the evidence is capable of acting against the accused in a manner unrelated to its probative value. Having regard to the low probative value, I am of the view that it is outweighed by the danger of unfair prejudice.
5. With respect to the second portion of the call, while the utterance says something about the relationships between the accused and the deceased, and the accused and Mr Saret, it is a statement made after the deceased's death, and read in context, is infected by this reality. In other words, it appears to represent something of a view of the relative merits of the two relationships in hindsight. Its probative value is accordingly low. Conversely, the suggestion she would rather kill Mr Saret, in circumstances where she accepts responsibility for having already killed the deceased, again portrays the accused in a particularly poor light, in a manner unconnected with the probative value of the evidence. I am thus similarly of the view that the probative value of this evidence is outweighed by the danger of unfair prejudice.
6. I uphold the objection to each of the passages in Product 81.

Product 609

1. The accused objects to two parts of this call. The first is as follows: [5] "[Accused]: You know what I'm thinking? There are only two things that [the deceased] could have said to me, that would have changed everything. Just two things. He refused to give me that. [Mr Saret]: What? [Accused]: He refused to give me that. Same thing you did to me yesterday. Why do you deserve a second chance, not him? Nothing."
2. I note the objection was to the first paragraph set out above, but I have included the accused's further statement as it is dependent on the portion objected to. In the first passage, the accused appears to be reflecting on her interactions with the deceased, which, read in context, is capable of being understood as relating to the time shortly before the deceased's death. The statement is capable of being understood as an admission that the deceased failed to give the accused what she wanted, leading to her fatally stabbing him. While the accused's responsibility for the stabbing is no longer in issue, the events leading to her performing the act remain relevant. It was not submitted that any other exclusionary rule applies. The objection to this passage is overruled.
3. The second passage in Product 609 objected to by the accused is as follows: [6] "[Accused]: Did you know what VINCENT said to me, he said he knew that what happened to me was painful, but no offence to [the deceased], he said that it seems like he preferred that [the deceased] was gone. Because as long as [the deceased] is alive, I can't move. Even if we separate, he will still be a burden to me. I cannot say no to him. (For instance when) CARDO isn't calling... like VAL, can I say no? I'm tired of saying yes to people. Do you want to be the third? Will I always give in? Fear of losing? I'm done with that. That drama series is over in my life. This is another segment."
4. The accused, in the initial part of the passage, appears to be relating something said to her by the person "Vincent". It is quite unclear as to how much of what follows involves the accused simply recounting what was said by Vincent. To the extent statements might be understood as being those of the accused, or that an inference is available that the accused was adopting Vincent's view, the evidence is relevant to the state of the relationship between the accused and the deceased, including there being an advantage to the deceased's death. The meaning of the references to "Cardo", "Val", and whether Mr Saret "wants to be the third", are somewhat obscure. To the extent that these utterances have probative value, it is relatively slight. Conversely, the suggestion that "it was preferred that the deceased was gone", suggests a calculated view in the circumstances of a case in which I do not understand there to be any suggestion the killing was premeditated. There is a danger with respect to this evidence that it will be given more significance than it properly warrants. Additionally, having regard to the lack of clarity as to what was meant, I have regard to the fact that the call is a translation, together with the unavailability of Mr Saret. In this respect, I note that Mr Saret may have been able to shed light on the relevance of Vincent, Cardo and Val to the conversation, and the potential relevance of the reference to him being "the third". I am ultimately of the view that the probative value of this passage is outweighed by the danger of unfair prejudice.

Product 657

1. I understand the accused objects to the whole of this translation. [7] The accused accepts that the conversation records the accused expressing anger towards Mr Saret for not deleting messages, but submits that it is not apparent that the anger has anything to do with the accused implicating herself in relation to the deceased's death. I note that that submission was made prior to the accused's change of plea. The accused set out the following passage as an example which was said to show the "ambiguity as to the reason for the accused's anger": [8] "[Accused]: (Whispers between her teeth.) You son of a bitch, there are contents there that implicate the amendment. Son of a bitch, again just I am able to defend myself. It's just, I mean, hello, I need to- You bitch, you've told me everything. You bitch, our messages included that I said that we were separating. You son of a bitch, I told you to delete them. You son of a bitch, they have your phone. (Breathing on the phone and chatter in the background.) You son of a bitch, do you understand me? [Mr Saret]: Uhum. [Accused]: What 'Uhum'? Son of a bitch, I am getting angry. [Mr Saret]: What? Hmm? [Accused:] You son of a bitch! I told you to delete them. Right after I got out, I told you you delete all of our conversations. I had told you that your phone is with them. You son of a bitch!"
2. The above passage demonstrates the accused's anger at Mr Saret having failed to delete messages between them. Given that Mr Saret was in New York, it is unclear how it is that police had his phone and consequently how Mr Saret could have deleted messages between himself and the accused "on" that phone. It may be that the relevant messages were on a server, and it was assumed that Mr Saret had the capacity to delete them. It is unnecessary to draw any conclusions as to this. It is sufficient to note that the conversation proceeds on the premise that it was possible for Mr Saret to have deleted the messages.
3. The accused, in the course of the passage set out above, states "our messages included that I said that we were separating". This is relevant to the relationship between the accused and Mr Saret, and, in turn, relevant to the relationship between the accused and the deceased. In short, if she was planning to separate from or had separated from Mr Saret, the inference is available that the deceased was more important to her, particularly in the context of her seeking to adopt a child. In this context, combined with other evidence in the case suggesting the deceased intended to leave the accused, it is highly relevant to the emotional state of the accused prior to the deceased's death.
4. The accused's belief as to the content of the messages being discussed in this conversation, including the suggestion that they revealed the accused was leaving Mr Saret, is relevant. An inference is available to be drawn from her anger with Mr Saret, in the context of her understanding of the content of the messages. The accused's anger speaks to her appreciation of factors relevant to her emotional state at the time. It is however, not clear what, if anything, the remainder of the conversation subsequent to the above passage adds to the evidence in the first part of the call. Further, the remainder of the conversation contains repeated expressions of anger towards Mr Saret, including the accused repeatedly calling him a "son of a bitch". While language of this nature, in the context of someone accused of killing, would not ordinarily be regarded as giving rise to any real danger of unfair prejudice, in the present case, the many instances of repetition and the apparent hostility, displace this view. Further, there is the risk that the words on the page, being a translation, do not fully reflect the nature of any idiom used by persons such as the accused, and understood by Mr Saret.
5. I am of the view that the probative value of the remainder of this call, following the passage set out above, is outweighed by the danger of unfair prejudice. I exclude that part of the translation from p 204-215 (inclusive) of Exhibit VD-C on this basis.

Product 659

1. The objection to Product 659 was on the same basis as above. It involves the continuation of the accused's expression of her anger with Mr Saret for his failure to delete messages between them. In so expressing anger, the accused uses language which appears to be designed to humiliate Mr Saret ("what is your purpose in life?" [9] ), and additionally threatens Mr Saret ("if it is used against me, I will really take you with me"; [10] and "if those messages come out in the exhibits, you better hide" [11] ). Again, it is unclear what this call adds to the part of Product 657 I have determined is admissible. I am of the view that the probative value of Product 659 is outweighed by the danger of unfair prejudice.

Conclusion

1. I rule as follows: 1. Product 4: the accused's objection to the portion of this translation at Exhibit VD-C, p 21, is overruled. 2. Product 81: the accused's objection to portions of this translation at Exhibit VD-C, pp 87 and 92, as set out in my reasons above, is upheld. I reject those portions. 3. Product 609: the accused's objection to the portion of this translation at Exhibit VD-C, p 188, as set out in my reasons above, is overruled. The accused's objection to the portion of this translation at Exhibit VD-C, p 194, as set out in my reasons above, is upheld. I reject that part of the translation at Exhibit VD-C, p 194. 4. Product 657: the accused's objection to the portion of this translation at Exhibit VD-C, pp 197-203, inclusive, is rejected. The accused's objection to the remainder of the translation is upheld. I reject the pages at Exhibit VD-C, pp 204-215. 5. Product 659: the accused's objection is upheld. I reject this part of the translation.

Endnotes

1. Exhibit VD-C, p 21
2. Exhibit VD-C, p 29
3. Exhibit VD-C, p 87
4. Exhibit VD-C, p 92
5. Exhibit VD-C, p 188
6. Exhibit VD-C, p 194
7. Exhibit VD-C pp 197-215
8. Exhibit VD-C, p 203
9. Exhibit VD-C, p 218
10. Exhibit VD-C, p 219
11. Exhibit VD-C, p 219 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