R v A (No 2) - [2015] NSWSC 76

Supreme Court

New South Wales

Medium Neutral Citation: R v A (No 2) [2015] NSWSC 76
Hearing dates: 11 February 2015
Date of orders: 12 February 2015
Decision date: 12 February 2015
Jurisdiction: Common Law
Before: Bellew J
Decision:
See [28] and [37]

Catchwords: CRIMINAL LAW – evidence – context evidence – where Crown alleged manslaughter by gross criminal negligence – where Crown sought to rely upon other evidence of neglect by the accused towards the deceased – whether evidence admissible
Legislation Cited: Evidence Act 1995
Cases Cited: DJV v R [2008] NSWCCA 272
FDP v R [2008] NSWCCA 317
KJS v R [2014] NSWCCA 27
KTR v R [2010] NSWCCA 271
Norman v R [2012] NSWCCA 230
Qualtieri v R [2006] NSWCCA 95
RG v R [2010] NSWCCA 173
R v Toki [2000] NSWSC 999; (2000) 116 A Crim R 536
R v Yates [2002] NSWCCA 520
Wilson v R [1970] HCA 17; (1970) CLR 334
Category: Procedural and other rulings
Parties: Regina - Crown
Representation:
Counsel:
Mr C Maxwell QC - Crown
Mr W Terracini SC and Mr P Stitz - Accused
Solicitors:

File Number(s): 2013/194634
Publication restriction: Nil

Judgment

The accused has pleaded not guilty to the manslaughter of her infant son. Senior Counsel for the accused has raised objection to a number of discreet pieces of evidence upon which the Crown wishes to rely.

THE CROWN CASE

In order to place the issues which are raised on the present application in their appropriate context, it is necessary to set out the terms of the Crown case statement filed in the proceedings. In doing so, I should note that this document was prepared at a time when the Crown had indicted the accused on a charge of murder. The accused has now been indicted on a charge of manslaughter. The Crown case, as opened to the jury, is based upon an allegation of gross criminal negligence, based upon a failure by the accused to provide appropriate medical assistance to her son in circumstances where he was obviously ill. In setting out the Crown case statement the names of any person(s) whose identity might lead to the identity of the deceased have been anonymised, and references to addresses have been deleted.

1. The deceased was born on 28 December 2009. He was the child of the accused, born 20 May 1981, and (KI), born 15 October 1966.
2. From June 2012 the deceased resided at xxx with the accused, the accused’s de facto partner (K) and two of the accused’s children (JE) aged 4 and (JA) aged 9 and K’s son (E).
Medical Intervention
3. At 4.20pm on 3 August 2012 K called ‘000’ and asked for an ambulance to attend xxx. He told the ambulance officer that the deceased had been sick for a couple of days, that he had been asleep for a couple of hours, that they had just checked on him and he was really limp and that he could feel a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v A (No 2)

Details

AGLC: R v A (No 2) [2015] NSWSC 76
Case: [2015] NSWSC 76
Decision Date: 12 February 2015

CaseChat Overview and Summary

The case of R v A (No 2) was heard in the Supreme Court of Victoria. The respondent, A, was charged with manslaughter by gross criminal negligence. The Crown sought to introduce evidence of other instances of neglect by A towards the deceased, to demonstrate a pattern of behaviour that would support the charge. A objected to the evidence, arguing that it was irrelevant and prejudicial. The court had to determine the admissibility of this context evidence.

The court considered whether the evidence of other instances of neglect was relevant to proving the charge of manslaughter by gross criminal negligence. The court needed to assess if the evidence could assist in establishing a fact in issue or if it was too prejudicial to be admitted. The court examined the relevance and probative value of the evidence against its potential to mislead or prejudice the jury.

The Supreme Court held that the evidence of other instances of neglect by A towards the deceased was relevant and should be admitted. The court reasoned that such evidence could provide a broader context for understanding A's relationship with the deceased and could be probative of the charged offence. The court found that the probative value of the evidence outweighed any prejudicial effect it might have. Consequently, the evidence was admitted, and the trial proceeded with this context evidence.

The Supreme Court allowed the Crown's application for the admission of context evidence. The trial continued with this evidence, and the jury was instructed on its limited use. The court's decision was grounded in the need to assess the evidence on its individual merits and the overall context of the case.

Orders