Latu v R

1. [1]

   BELL CJ: I agree with the reasons of Davies J and the orders he proposes.

2. [2]

   DAVIES J: Rhonda Baker was killed on or about 7 August 2016. The applicant was charged with her murder. He pleaded not guilty, and stood trial before Lonergan J and a jury.

3. [3]

   The trial commenced on 5 November 2018, and the jury returned a verdict of guilty on 3 December 2018. On 26 July 2019 the applicant was sentenced to imprisonment for 28 years with a non-parole period of 21 years. He was also sentenced for an offence on a s 166 certificate of contravening a prohibition or restriction in an apprehended domestic violence order (ADVO). The sentence was imprisonment for two years, and the sentence was made wholly concurrent with the sentence for murder.

4. [4]

   The applicant now seeks leave to appeal on a single ground of appeal as follows:

5. [5]

   The applicant also seeks leave to bring the appeal out of time. A Notice of Intention to Appeal was filed on 7 August 2019. That Notice expired on 30 July 2020. The Notice of Appeal was filed on 8 February 2022.

Factual background

1. [6]

   The factual background may be summarised as follows, by reference to the sentence judgment of R v Latu (No 3) [2019] NSWSC 951.

2. [7]

   The deceased, Rhonda Baker, met the applicant when she was about 17 years old. There was evidence that the relationship was an “on again/off again” type of relationship.

3. [8]

   At the time of the murder, the applicant and Ms Baker were living together in an intimate domestic relationship at an apartment in Liverpool. Ms Baker was paying the rent for the apartment as well as her living expenses and those of the applicant.

4. [9]

   During the relationship, the applicant both threatened violence to Ms Baker, and acted violently towards her.

5. [10]

   There was an escalation in the applicant’s violence and controlling behaviour towards Ms Baker in the months leading up to the offence. This was demonstrated by the evidence of what the deceased told a number of her friends and colleagues, and the injuries observed by witnesses who saw her during that period.

6. [11]

   An ADVO was issued at the end of April 2016 as a result of a person witnessing the applicant assaulting Ms Baker in their car. The ADVO required the applicant not to assault or intimidate Ms Baker. Despite the ADVO, the applicant continued to be violent towards her.

7. [12]

   The applicant threatened the deceased that if she left him, he would go after her family and burn down her grandfather’s house. He made other threats that he would hurt her family if she told anyone what was going on in the relationship or broke up with him.

8. [13]

   On 27 July 2016, ten days before her death, Ms Baker was severely assaulted by the applicant. She arrived at work with significant facial injuries. She told a work colleague that she had been punched in the face that morning “because she answered him back”. She told the colleague that the applicant was becoming increasingly controlling and violent and that she was trying to leave the relationship and move in with her mother or father.

9. [14]

   Ms Baker also had discussions with other friends and colleagues about getting away from the applicant, including moving to Melbourne to live. She expressed concern that wherever she went he would find her.

10. [15]

    On Friday, 5 August 2016, the applicant and Ms Baker had an argument. That led to Ms Baker packing all of the applicant’s clothes into a bag in the lounge room.

11. [16]

    On the night of 6 August 2016, the applicant had been waiting in the city to be picked up by Ms Baker and a friend of the applicant’s, Kang Warman. He was waiting there for a period in excess of 15 minutes. Mr Warman said that while Ms Baker was on her way to pick the applicant up, he could hear the applicant yelling at Ms Baker through the phone although he could not hear precisely what the applicant was saying.

12. [17]

    After Ms Baker collected the applicant, Mr Warman was dropped off at a pub in Surry Hills close to 9:30pm. At that time Ms Baker did not appear to Mr Warman to be injured and he did not observe any blood in the car.

13. [18]

    Ms Baker then drove the applicant to their apartment in Liverpool.

14. [19]

    At about 3.45am on 7 August 2016, a neighbour in an apartment on the floor below heard arguing between a man and a woman. It lasted about five minutes and then went quiet. The neighbour then heard the same voices at about 4:00am. The neighbour had heard the same voices some weeks before.

15. [20]

    The Crown case was that sometime in the late hours of 6 August 2016 and/or the very early hours of 7 August 2016, the applicant viciously attacked Ms Baker, inflicting multiple blunt force blows to her head. The mechanisms described by Dr Szentmariay, the forensic pathologist who conducted the autopsy, included by the applicant’s use of his fists on Ms Baker’s face, head and body, or by moving her head against a surface like a wall or flooring, and/or by kicking and or stomping on her head, back, ribs and leg.

16. [21]

    The injuries consisted of multiple facial fractures including a blow-out type fracture of the right orbit around Ms Baker’s eye; fractures in three places on her zygomatic arch, including one fracture described as “the point of the bone actually caved in, inside the eye bone”; a fracture to the base of the nasal bone; multiple rib fractures; bleeding around the left kidney; three one centimetre full thickness lacerations under her lips (meaning that the lacerations were so deep that they reached the underlying bone and exposed it); a large left shoulder bruise; and bruises on the right flank, left lower back and left scapula, as well as on the forehead and eyelids with a contusion over the right nostril and a contusion under the chin.

17. [22]

    The mechanism of death was a subdural haematoma on the left side. That created pressure on the brain, resulting in the brain being pushed to the side and down into the spinal column, with fatal consequences.

Tendency and relationship evidence

1. [23]

   A voir dire hearing was held on 29 October 2018 regarding the admissibility of certain tendency and relationship evidence.

2. [24]

   In the Crown’s amended tendency notice dated 19 October 2018 the following relevantly appeared:

3. [25]

   The eight incidents relied upon as tendency evidence were the following:

   1. (1)

      The applicant attacked the deceased in a car in 2010 or 2011 on the M5 motorway.

   2. (2)

      The applicant attacked the head of Hayley Bingley, pulling her hair when he was angry for little or no reason on 12 June 2013 at Eagle Vale.

   3. (3)

      The applicant punched the face of Hayley Bingley in the eye area on 18 July 2013 at Ruse.

   4. (4)

      The applicant attacked the head of the deceased, pulling hair out when he was angry for little or no reason in 2014 at Liverpool.

   5. (5)

      The applicant attacked the head of the deceased in a car around 6 March 2015.

   6. (6)

      The applicant punched the face of the deceased on 30 October 2015.

   7. (7)

      The applicant attacked the head of the deceased in a car on 28 April 2016 in Cabramatta.

   8. (8)

      The applicant punched the head of the deceased when he was angry for little or no reason in July 2016 at Liverpool.

4. [26]

   The relationship evidence which the trial judge permitted to be led was identified in Schedule A of the Crown’s written submissions on the voir dire. The following is the identification of the evidence without the supporting material:

   1. (1)

      Evidence of controlling behaviour by the accused:

   2. (2)

      Evidence of jealousy:

   3. (3)

      Evidence of violent behaviour:

5. [27]

   Objection was taken by the accused to five of the categories of relationship evidence being paras (1)(a), (k), (l), (2)(c) and (3)(d) above.

6. [28]

   In a brief ex tempore judgment on 29 October 2018, and by a more detailed revised judgment dated 1 November 2018, the trial judge held that both the tendency and relationship evidence was admissible, subject to its being adduced in admissible form: R v Latu [2018] NSWSC 1659.

7. [29]

   Part of the relationship evidence sought to be tendered by the Crown was a series of emails, called the “Dial-a-Dump” emails (the place the deceased worked at the time of them). In written submissions about this, Mr Woods QC, for the accused before Lonergan J, said:

8. [30]

   One of these emails was of particular focus during the trial. It was dated 11 June 2016 at 3.07pm from the deceased to the applicant, responding to an email from the applicant to the deceased at 1:41pm on that day. The applicant’s email read in part:

9. [31]

   The deceased’s response said in part:

10. [32]

    The substance of the complaint now made by the applicant is that the absence of directions about the relationship evidence (an anti-tendency direction) resulted in a miscarriage of justice because the jury may have used the relationship evidence as tendency evidence. Particular emphasis was laid on this email in relation to potential misuse of the relationship evidence by the jury for tendency purposes.

The course of the trial

1. [33]

   The Crown opened to the jury, saying that they would hear evidence about the relationship between the applicant and the deceased, to enable the jury to “get some insight into the context in which the Crown alleges this incident occurred”. The Crown said that some of the relationship evidence was also relied upon to prove a tendency on the accused’s part, whilst in an intimate domestic relationship with women, when angry with them, to be violent towards them by the use of physical force to the head region. The Crown specified that there were eight particular acts that it relied upon for tendency evidence.

2. [34]

   The principal, but not the only, witness in relation to the relationship evidence was the best friend of the deceased, Sharnee Marfutenko. By agreement with counsel for the parties, the trial judge, at the conclusion of Ms Marfutenko’s evidence, gave what may be regarded as the standard tendency direction where her Honour specified the eight incidents the Crown relied upon to establish the tendency. In the course of that direction, her Honour said:

3. [35]

   In the course of the Crown’s closing address, the Crown prosecutor said this:

4. [36]

   That reference was made because one of the possibilities put forward by the defence for the deceased’s injuries was that she had left the home unit and, when walking in the street in the early hours of the morning, had been assaulted.

5. [37]

   The Crown also said of the relationship evidence:

6. [38]

   In other remarks relevant to the relationship evidence during the closing address, the Crown prosecutor said:

7. [39]

   At the outset of defence counsel’s address, Mr Woods QC said this:

8. [40]

   The focus of defence counsel’s address was on what was said to be the truthfulness of much of what the applicant said to the police and on the issue of intention. However, defence counsel returned to the issue of the relationship evidence, saying that it was not disputed that the applicant had mistreated the deceased on several prior occasions. Defence counsel then raised as an alternative to a finding of murder, the possibility that the jury might find him guilty of manslaughter. He said:

9. [41]

   Defence counsel concluded his address on 29 November 2018. On the morning of 30 November 2018 there was a discussion between the trial judge and counsel about directions her Honour said she would be giving. Her Honour then added:

10. [42]

    Mr Woods replied:

11. [43]

    During her Honour’s summing up, her Honour summarised what the Crown had said were its 26 key points making up the circumstantial case against the applicant. Point 6 was said by her Honour to be this:

12. [44]

    At the conclusion of summarising the 26 points, her Honour gave directions about lies and consciousness of guilt.

13. [45]

    Her Honour then reiterated the direction she had given during the course of the trial regarding tendency evidence as follows:

14. [46]

    At the conclusion of that direction, the jury was sent out and her Honour asked Mr Woods if he had anything to raise. He said, “No, your Honour”.

15. [47]

    When the jury returned, her Honour commenced to summarise the addresses of counsel. Her Honour said that the Crown commenced, highlighting the background of violence and jealousy underpinning the relationship “and in particular the emails that are exhibit L” [the Dial-a-Dump emails]. Her Honour then said that the Crown went on to discuss the tendency evidence, the three explanations of the accused for the deceased’s death, and the question of intention to kill or cause really serious bodily harm. Her Honour then said:

16. [48]

    At the conclusion of her Honour’s summing up, she asked counsel if they had anything to raise. Mr Woods said:

Legal principles

1. [49]

   KRM v R (2000) 206 CLR 221; [2001] HCA 11 and Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894 were cases involving multiple sexual offences against children. The issue in both cases was whether an anti-tendency direction (as it has come to be called) must be given in such circumstances.

2. [50]

   In his judgment in KRM, McHugh J said:

3. [51]

   In their joint judgment, Gummow and Callinan JJ said at [72] that no universal rule should or might be laid down for the giving of an anti-tendency warning in a case of multiple sexual offences.

4. [52]

   Although Kirby J dissented on the need for a such a warning in that case, his Honour said at [114] that the Court should not lay down a universal rule that such a warning was required.

5. [53]

   In Hamilton, the majority judgment of Kiefel CJ, Keane and Steward JJ said:

6. [54]

   A miscarriage of justice will occur if there is a real chance that a jury may have convicted the accused by a chain of “forbidden reasoning”: BRS v The Queen (1997) 191 CLR 275 at 306 (per McHugh J); or where there is a significant risk that the jury might have embarked on impermissible tendency reasoning: Vaoalii Toalepai v R [2009] NSWCCA 270 at [49].

7. [55]

   The decision of defence counsel will be of importance in deciding whether there was a miscarriage of justice. The majority in Hamilton said:

8. [56]

   An accused will generally be bound by counsel’s forensic choices. It is only where the appellate court is persuaded that no rational forensic justification can be discerned for a challenged decision that consideration will turn to whether its making constituted a miscarriage of justice: Craig v The Queen (2018) 264 CLR 202; [2018] HCA 13 at [23].

9. [57]

   However, where there is a real risk that tendency reasoning might be employed, it will not be a sufficient answer to say that it was a forensic decision made by counsel not to seek such a direction: Medich v R [2021] NSWCCA 36 at [133].

Submissions

1. [58]

   The applicant noted that of the first six “main circumstances” identified by the Crown prosecutor in his closing address, five of them related to the relationship evidence. The prosecutor invited the jury to use the evidence of the relationship as relevant to the applicant’s intention. The applicant submitted that, because this evidence was not adduced for the purpose of showing that the applicant had a particular tendency, the jury needed careful directions about the relationship evidence. That was because there was a danger of unfair prejudice, in that the jury might use the evidence wrongly to reason that because the applicant had by his conduct shown a tendency to be violent to the deceased in the past, it was likely that he acted in conformity with that tendency on the relevant night.

2. [59]

   The applicant identified the problematic evidence as the threats to kill the deceased and the threat, referred to in the email of 11 July 2016 to “cave you head in” in circumstances where the evidence given by the forensic pathologist stated that a bone in the deceased’s face had been “caved in”.

3. [60]

   The applicant submitted that, in circumstances where the trial judge did not distinguish between the tendency evidence and the relationship evidence but focused on the tendency evidence, the jury would not have understood that they were only able to engage in tendency reasoning in relation to the eight items of evidence, specifically discussed by the trial judge as evidence that could be used to support tendency reasoning. The applicant submitted that the problem was highlighted by the fact that the relationship evidence was relied upon partly to go to the question of intention.

4. [61]

   The applicant submitted that the reference in the email of 11 July 2016 to caving the deceased’s head in was second hand hearsay and was not available to be used to show the applicant’s state of mind at the time of the alleged threat, notwithstanding his concession that the point was not taken at the trial, and that this evidence was not objected to on that basis.

5. [62]

   The applicant submitted that, because the jury was invited to use the relationship evidence to show intention, the way they were likely to do that was to reason that the applicant had a tendency to have a particular state of mind, not just to make a threat or engage in conduct. That state of mind was a willingness to cause grievous bodily harm.

6. [63]

   The applicant submitted that it was difficult to understand why his senior counsel at the trial did not seek a direction concerning the relationship evidence, but he submitted that it is not possible to identify a forensic reason why counsel would not have done so. It must be assumed, therefore, that the matter was simply overlooked. In the circumstances the applicant submitted that a miscarriage of justice resulted, and r 4.15 should not prevent the matter being raised on the appeal.

7. [64]

   It is clear that an anti-tendency direction or warning is not required in every case where relationship evidence is led. A warning may be necessary if there is a real chance or a significant risk that the jury might reason impermissibly. The fact that experienced defence counsel does not seek such a direction will be a significant factor in determining whether such a direction was necessary.

8. [65]

   In my opinion, an examination of the whole of the trial shows that there was no real chance or no significant risk that the jury might use the relationship evidence in an impermissible way to reason that the applicant had a tendency to have a particular state of mind and, therefore, the requisite intention for murder, to inflict really serious injury on the deceased.

9. [66]

   First, the Crown prosecutor clearly distinguished between the matters relied on for tendency purposes and the remainder of the relationship evidence. He did not invite the jury to engage in tendency reasoning in respect of the relationship evidence not forming part of the eight identified incidents

10. [67]

    Secondly, the trial judge gave a tendency direction at the conclusion of Ms Marfutenko’s evidence in chief in relation to the eight incidents the Crown relied upon to establish tendency. The incidents were clearly identified and the jury were told how they could use that evidence to conclude that the applicant had the tendency alleged. During the course of that direction, the trial judge said:

11. [68]

    The trial judge repeated that tendency direction in her summing up before summarising the Crown case generally and the Crown’s use of the tendency evidence in particular. The direction at both times it was given was expressly confined to the eight incidents identified by the Crown.

12. [69]

    Mr Odgers SC for the applicant drew attention to what was said in Toalepai v R [2009] NSWCCA 270 at [44] by Howie J, that where the issue of tendency is raised for a jury’s consideration, a failure to give a warning in relation to evidence not being used for tendency purposes “could amount” to a serious defect in the summing up. However, in the present case, both the Crown prosecutor and the judge in her summing-up clearly delineated the two different types of evidence, and made clear that it was only the eight identified instances that could be used for tendency purposes. The present case is a good example of why the High Court has not prescribed an invariable rule or practice concerning the giving of an anti-tendency direction: see also FB v R [2020] NSWCCA 137 at [56] – [57].

13. [70]

    Thirdly, it is difficult to see how the relationship evidence could be employed for impermissible tendency purposes. An examination of the relationship evidence at [26] above demonstrates that any tendency inferred from those matters would not result in a reasoning to guilt by reason of the tendencies inferred. That was no doubt why the focus of Mr Odgers SC’s address was on the threats that were disclosed in the evidence. He accepted that, in the absence of the threats, the appeal could probably not be maintained. These threats consisted of the email of 11 July 2016, the threat to kill the deceased if she called the police in April 2016 and on 4 August 2016, and what was said in the email of 8 April 2016 as follows:

14. [71]

    However, as the Court suggested to Mr Odgers, any use of these threats by engaging in tendency reasoning would only demonstrate a tendency to threaten at various times that the deceased displeased the applicant. Mr Odgers submitted, in response, that it could be used to infer a tendency to have a particular state of mind. That state of mind he said was a willingness to cause grievous bodily harm.

15. [72]

    This Court said in Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303:

16. [73]

    Fourthly, at the time of the pre-trial determination concerning relationship evidence, there was no objection to it on the basis that there was a danger of the jury misusing it by engaging in impermissible tendency reasoning. Nor was it suggested that a direction would be needed in relation to it.

17. [74]

    Fifthly, when the emails were tendered, there was neither objection on the ground that what was contained in it amounted to second-hand hearsay, as Mr Odgers contended, nor any suggestion that an anti-tendency direction would be needed because of their content, particularly the email of 11 July 2016.

18. [75]

    Sixthly, no complaint was made about the terms of the Crown prosecutor’s closing address. Nor was it suggested by defence counsel that, as a result of the way the email of 11 July 2016 was dealt with in that address, such a direction would be necessary.

19. [76]

    Seventhly, before her Honour commenced summing up she sought from counsel the directions that should be given, and no anti-tendency direction was sought. At the conclusion of her Honour’s summing up, her Honour checked with counsel about whether anything further needed to be said, and no such direction was sought. The applicant was represented by one of the most experienced criminal barristers in this State.

20. [77]

    All of that is a strong indication, in the context of the trial, that defence counsel did not consider there was a real chance or a significant risk that the jury would wrongly engage in tendency reasoning in relation to the relationship evidence.

21. [78]

    Further, defence counsel himself relied on the relationship evidence to suggest to the jury that if they were satisfied that it was the accused who was responsible for the deceased’s death, he should only be found guilty of manslaughter. That part of the address is set out at [40] above.

22. [79]

    There are reasonable explanations for defence counsel not having sought an anti-tendency direction. There was other evidence in the case of much greater concern to the applicant than this relationship evidence, and nothing in the case would have been improved for the applicant by drawing attention to that evidence and seeking such a direction. Further, there was a danger that highlighting the misuse of the relationship evidence on a tendency basis may have led to that very result by seeking such a direction: The Queen v Falzon (2018) 264 CLR 361; [2018] HCA 29 at [46].

23. [80]

    In that way, it cannot be said that no rational forensic justification can be discerned for the failure to seek such a direction in order to conclude that it must have been an oversight on defence counsel’s part

24. [81]

    No miscarriage of justice is demonstrated in the circumstances of this trial. Rule 4.15 applies. I would grant an extension of time to appeal but refuse leave under r 4.15.

Conclusion

1. [82]

   I propose the following orders:

2. [83]

   FAGAN J: I agree with Davies J.