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

1. 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

2. 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 slight heartbeat. K performed CPR on the deceased, under the direction of the ‘000’ operator.

4. Paramedic John Bevan was the first ambulance officer to arrive at the address at 4.27 pm. The accused was in the front yard; she appeared distressed and was speaking on a phone. She directed Paramedic Bevan into the house and said that the step dad was with the deceased. Paramedic Bevan walked through the lounge room, where he observed E watching television. Paramedic Bevan was called into a bedroom by K, who was kneeling over the deceased performing CPR. Paramedic Bevan asked K to continue whilst he set up his equipment.

5. Paramedic Bevan observed that the deceased was blue in colour and had a number of atypical bruises, including to the left jaw and the lower left abdominal area, and had no cardiac rhythm. K told him that the child had been asleep for a few hours and that his mother had checked on him about an hour ago. Paramedic Bevan commenced CPR on the deceased. Paramedic Sean Cooke arrived and intubated the deceased. Paramedics Corey Hammer and Greg Matheson assisted. A number of doses of Adrenalin and Atropine were administered to the deceased. Paramedics Darren Plumb and Robert Kembrey arrived to assist.

6. Once the deceased was stabilised sufficiently to be moved he was taken to Wollongong Hospital.

7. During the time ambulance personnel were in the house working on the deceased the accused did not come into the bedroom, and neither the accused nor K asked about the condition of the deceased.

8. Police arrived at the scene shortly after ambulance personnel. The Accused was more interested in what police were doing than the deceased. The accused said, “I will have to answer to his father about this, you watch”.

9. The deceased arrived at Wollongong Hospital at 5.14pm; he was in cardiac arrest and paramedics were performing CPR. Dr Simon Binks led the resuscitation team who continued standard advanced life support on the deceased. The deceased remained unresponsive and resuscitation was ceased at 5.49pm. Dr Binks noticed multiple small bruises on the deceased’s lower back and a 4x2cm bruise on his abdomen.

10. Dr Susan Piper was allocated the role of speaking to the deceased’s family. Resuscitation had been continuing at the hospital for about 10 minutes and the family had not arrived in the resuscitation room. Dr Piper went to look for the family and was told by ambulance officers that the family had wanted to have a smoke before coming into the Emergency Department. Dr Piper spoke with the family and tried to bring them into the resuscitation room, however the Accused and K were reluctant to come in.

11. Dr Piper spoke with the accused who told her that the deceased had been unwell for a few days, but had seemed better that morning. The accused said that she had put the deceased down for a sleep about 12.30pm that day and had checked on him about an hour before the ambulance was called. The accused said that she checked on the deceased again about 4.20pm and he wasn’t breathing. She called out to K who was in the back yard, K came inside and an ambulance was called.

12. Dr Piper spoke with K who told her that he tried to resuscitate the deceased; K was crying as he spoke of this.

13. The accused, KI, and K were taken to the resuscitation room where they stayed for 5 minutes. After this occurred Dr Piper spoke to the accused about the deceased’s medical history. Dr Piper found the accused vague and it was difficult to get precise timings about the current illness.

Medical findings

14. A post mortem examination was conducted by Dr J Duflou, between the 4 - 15 August 2012. During the examination the following injuries were identified;

a. Multiple bruises to the surface of the body.

b. Blunt force head injury with;

i. Multifocal cerebral subdural haemorrhages.

ii. Multifocal subarachnoid haemorrhage, up to several days old.

iii. Recent thrombosis.

iv. Contusions.

v. Multifocal cortical ischemia of differing ages.

vi. Isolated axonal spheroids, corpus callosum.

vii. Moderate cerebral swelling.

viii. Spinal subarachnoid haemorrhage

ix. Bilateral recent optic nerve sheath haemorrhage.

x. Sparse recent bilateral superficial retinal haemorrhages

c. Multiple skeletal injuries;

i. Fractured ribs 5, 6, &7 on the left laterally.

ii. Fractured left clavicle.

iii. Fractured right scapula.

iv. Bilateral distal radius fractures

v. Periosteal reaction of upper extremity long bones.

d. Abdominal blunt force injury;

i. Peritonitis with 300ml turbid fluid in peritoneal cavity.

ii. Retroperitoneal blunt force injury.

iii. Transmural jejunal injury.

e. Early pneumonia

f. Prolonged ‘stress response’.

g. The victim was described as small for his age and the cause of death was opined to be “multiple injuries”.

h. The proximate cause of death was bilateral subdural haematomas. The right dural convex haematoma was up to several days old.

15. Dr Kristina Prelog examined x-rays of the deceased. The fractures can be dated as follows:

a. Right humerous-2 weeks

b. Right radius and right scapula-2-3 weeks

c. Clavicle and left radius-more than 3 weeks

d. Distal left ulna-more than 6 weeks

16. Dr Hugh Martin examined Post Mortem Photographs and specimens and formed a view that the peritonitis was caused by blunt force trauma to the abdomen in the days before death. This is supported by photographs showing bruises to the abdominal wall and the presence of plaque on the wall of the bowel.

17. Dr Paul Taite reviewed the material, in particular a photograph taken of the deceased’s abdomen on 29 June 2012 and was of the opinion that the bruise was suggestive of a punch with a closed fist. In addition he viewed autopsy photographs of the abdominal bruise and found them consistent with blunt force, possibly a kick. Bruising to the lumbrosacral area on the deceased’s back was consistent with a punch with a closed fist.

18. Dr Taite noted that there had been significant head trauma on at least two occasions, the most recent probably within 24 hours of death.

The days leading up to the offence

19. On 24 July 2012 the accused had an argument with K. During this argument she took the deceased and JE from xxx to KI’s house at xxx. She left the children with KI and returned to xxx where she continued to argue with K. This argument culminated with her stabbing herself in the abdomen and being admitted to Wollongong Hospital for surgery.

20. The accused was in Wollongong Hospital from Tuesday 24 July to Monday 30 July 2012. The deceased was in the care of KI from Tuesday 24 July to Sunday 29 July 2012. On Friday 27 July 2012 the deceased attended (day care) where he was reported to be well.

21. On Saturday 28 July 2012 a witness saw the deceased with KI at 1/8 Henrietta Street, Towradgi. The deceased was clean and happy and running around playing. He had a small bite mark on his cheek.

22. K collected the victim from KI about 4.00pm on Sunday 29 July. K said that the deceased was a bit ‘sniffly’ but otherwise well, and had a small bruise on his chin. He did not notice other bruises while bathing the deceased.

23. On Monday 30 July 2012 K took the deceased with him to collect the accused from hospital. CCTV footage shows the deceased to be walking, and (K’s mother) says the deceased was walking around and eating well. DT, the mother of the accused, spoke to the accused on the phone and the accused told her that the deceased was well and eating food.

24. On Tuesday 31 July 2012 JT went to the accused’s house. She saw the deceased, he looked alright and was walking and leaning on the lounge.

25. The deceased’s condition began to deteriorate on Wednesday 1 August 2012. K looked after the deceased for two hours whilst the accused went shopping. The accused says that the deceased was fine when she returned home.

26. Between lunch time and mid-afternoon JT visited the accused at xxx; the accused did not know that she was coming. The deceased was crying and unhappy, his eyes were red and puffy and he looked weak and lethargic; there was a bruise on his forehead.

27. Later that evening the deceased vomited after eating dinner; this is the last time he consumed food. The accused told police that she thought the deceased had a ‘tummy bug’; he was bathed and put to bed, and was ‘whingey’ and unsettled during the night.

28. The accused had a doctor’s appointment at 9.40am the following day. That evening she sent a text message to RC asking if she could mind the children; RC replied that she could not because she was sick.

29. On Thursday 2 August 2012 the deceased woke with a dirty nappy. He had diarrhoea that smelt strongly like ammonia and was tired and lethargic.

30. K urged the accused to take the deceased with her to the doctor’s. Instead, the deceased and JE were taken to KI’s house at xxx. KI saw that the victim was pale, had blue lips, was shivering and shaking, and was very lethargic.

31. At 9.40am the accused attended Dr Bernard Lee’s surgery for her appointment. She told Dr Lee that the deceased was sick but she didn’t want to wake him, and made an appointment for the deceased for the following Monday.

32. At 12.30pm the accused and K went to xxx to collect the deceased. KI told the accused that the deceased was ill and that unless they took him to the doctor’s he would. The accused said she would look after it. The accused and K took the deceased and JE for KFC at the beach and went home. The deceased refused lunch however had a drink.

33. (The accused’s father) visited the accused around lunchtime. The deceased, accused and K were sitting at the front of the house. He did not see any marks on the deceased who looked tired and lethargic.

34. The accused put the victim to bed at 7.30pm; he still had diarrhoea

35. On Friday 3 August 2012 the accused drove E to school and JA to KI’s house; KI was to take JA to day care. The accused told KI that the deceased was too ill to attend day care.

36. The deceased woke at about 9.40am; he still had strong smelling diarrhoea. The accused arrived home and gave him some toast which he did not eat. The accused and K played computer games whilst the deceased sat on the lounge watching television until about 12.30pm. The deceased was put in his cot about 12.30pm.

37. JT visited the accused at about 11.30am on Friday 3 August. She saw the accused bent over in the kitchen, then carrying the deceased down the hallway; he was crying. The accused returned, she told JT that the deceased had a stomach bug. JT offered to get some hydrolite however the accused declined. The accused did not look herself at this time.

38. About 1.40pm the accused left the deceased, asleep in his cot, in the care of K whilst she ran errands. She returned to the house briefly before leaving again to collect E from school. She is unsure when she checked on the deceased, and did not “have a real good check of him.”

39. The accused checked on the deceased at 4.20pm and found him grey and unresponsive. She called out to K who came into the house, called an ambulance, and commenced cardio pulmonary resuscitation on the deceased with telephone assistance from the “000” operator.

History of prior injuries

(a) swollen right foot and 1x3cm scabbed healing abrasion on right upper abdomen 8 June 2012

40. On 7 June 2012 K took the deceased to see Dr Banijamili because of a swollen right foot; this had been present for one month. The deceased then saw Dr Goodhew on 8 June 2012 and was referred to the Emergency Department for an xray. Dr Binks saw the deceased in emergency; his right foot was moderately bruised and swollen and was diagnosed as a soft tissue injury. Additionally there was a 1x3cm scabbed healing abrasion on the deceased’s right upper abdomen. Dr Binks reported the injuries to DoCS.

(b) Injuries noted by staff at (day care) from 29 June 2012

41. The deceased attended (day care) on Fridays from 2 March to 27 July 2012.

42. (On 27 June 2012 KB saw the deceased at her son’s birthday party. She picked the deceased up, with her hands under his arms. The deceased screamed. KB moved the deceased to her hip and he continued to scream. The deceased was pale and had very dark circles under his eyes.)

43. On 29 June staff saw bruising on the deceased’s left abdomen, back, buttocks, forehead and hip. A report was made to DoCS.

44. On 6 July staff saw a large bruise on the deceased’s abdomen. A report was made to DoCS. On the same day staff spoke with KI and a further report was made to DoCS.

45. On 13 July staff discussed the bruises with the accused.

46. There were no further bruises noted on 20 or 27 July. The deceased appeared well and happy on 27 July.

47. On 3 July the centre were informed that the deceased would not attend due to illness.

Lies about the deceased’s health

48. DT, the accused’s mother, spoke with the accused up to three times each day between 30 July and 3 August 2012; the accused did not mention that the deceased was sick.

49. AB, the accused’s cousin, spoke with the accused about five times in the week before the deceased died. The accused did not tell her that the deceased was unwell.

50. On 2 August 2012 the accused had an appointment with Dr Bernard Lee. She told Dr Lee that she was intending to bring the deceased to the appointment however he was asleep at home and she decided not to wake him. The previous night the accused had tried to arrange for RC to mind the deceased, and that morning the accused had dropped the deceased with KI.

51. On 3 August 2012 the accused told JT that she would buy hydrolyte and glucose for the deceased. Despite attending shops after that conversation the accused did not do this.

Hiding of the deceased’s injuries

52. The deceased developed a noticeable limp in the weeks prior to 8 June 2012. JC noticed the injury and told K to take the deceased to the doctors. He was taken by K and the accused for medical treatment.

53. The accused did not seek medical treatment for the deceased after being informed by the day care centre that he had multiple bruises.

54. The accused did not seek medical treatment for the deceased for multiple fractures incurred on at least two occasions. The deceased did not have fractures in his lower limbs.

55. On Wednesday 1 August the accused, K and JE were walking in xxx; the accused was pushing (the deceased) in a pram. K stopped to speak with RH; the accused did not stop to talk but kept walking up the street

56. The accused tried to organise for RC to mind the deceased rather than leaving him with KI or taking him to see Dr Lee. The accused failed to take the deceased to see Dr Lee, or any doctor, despite being urged to do so by KI.

57. In her record of interview on 8 August 2012 the accused told police that she did not take the deceased to KI’s house on Friday 3 August because she was sick of the deceased coming home with bruises. In her record of interview in 20 August 2012 the accused told police that she did not take the deceased to day care on Friday 3 August 2012 because he wasn’t well enough. However she said that he had improved on that day and talked and danced. However, she did leave the deceased with KI the previous day. A strong inference to be drawn is that the deceased suffered further injuries after being collected from KI on 2 August and the accused was hiding those injuries.

58. The deceased was visibly unwell and upset when seen by JT on the morning of 3 August 2012. Rather than comforting the deceased the accused quickly took him to his bedroom and put him in his cot.

Evidence that the deceased was an unwanted child

59. When ambulance personnel attended xxx on 3 August 2012 the accused was more interested in what police were doing than the deceased. Police and ambulance personnel noted her behaviour as odd. Hospital staff found it unusual that the accused was not interested in the resuscitation attempts on the deceased.

60. The accused referred to the deceased as a haemorrhoid.

61. KB, sister in law of the accused, heard the accused say that she wanted JA and JE; she never heard the accused say that she wanted the deceased.

62. KB saw the deceased over Christmas 2011. He was visibly distressed and the accused walked away from him saying that she had had enough.

63. KB saw the deceased on 27 June 2012 at her son’s birthday party. The deceased wandered around the play centre with his arms up crying and whinging. The accused continually ignored the deceased.

Evidence of residents

64. The accused resided at xxx prior to moving to xxx.

65. TH never saw the accused interacting with her children. He never saw the deceased.

66. SS always saw the deceased in a cot or walker, she didn’t see the accused spend a lot of time with him. When the deceased wanted the accused’s attention the accused would get annoyed.

67. ST never saw the accused with the deceased as a newborn; KI was the main caregiver. She saw the accused pick up the deceased by the arm, lift him, and throw him over a small wall in front of xxx. She saw the deceased fall down 4-5 stairs. The neighbours ran to help him, the accused was the last to arrive. The accused took the deceased to xxx and put him in a cot with his bottle before returning to K’s house.

68. SM saw the accused pick up the deceased and throw him about a metre over a wall. The deceased whimpered and then crawled away. She saw the deceased fall down some stairs. Neighbours asked the accused to get him checked out, however she said he would be fine.

69. JA, the accused’s brother, regularly saw the accused leave the deceased in his cot so that she didn’t have to deal with him; she did not respond when the deceased cried. The accused did not give the deceased any of her time.

70. JC saw the deceased and JE locked outside PK’s house whilst the accused and K were having sex.

71. KB saw the deceased crying and the accused said that she was sick of him crying all the time.

72. LA saw the deceased standing in his cot crying or knocking on the bedroom window most days. Often the accused was in the driveway when this occurred. In February or March 2012 she saw the deceased fall down her flight of stairs and get a large lump on his forehead. After others had assisted the deceased the accused took him and tried to put him to sleep.

73. KA noticed that the accused did not look after the deceased or show much interest in him. She saw the deceased fall down a flight of stairs. KA told LA that the deceased might have concussion and needed to go to hospital. The accused told her that the deceased would be fine and put him in his cot before returning outside.

74. WM often sat with the accused outside while the deceased was in his cot.

75. ZA saw the accused leave the children unattended while she was drinking out the front or at the neighbour’s house.

76. KP, a friend of K, was visiting K and spoke with the accused about the deceased who was at home alone at the accused’s house. The accused told her that that the deceased could not get out of his cot.

77. CS saw the accused pick up the deceased by the arm and throw him over the front fence. She saw the deceased in the upstairs bedroom of the house whilst the accused was at PK’s house.

78. RD often saw the deceased standing in his cot banging on the bedroom window.

79. In June 2012 LE found the deceased wondering in the street in a jumpsuit at 9.30pm at night. She found out whose child he was and took him to the accused at a neighbour’s house. The accused put him in the kitchen and continued socialising.

Evidence of neglect

Residents

80. RH saw that the XXX house and yard were filthy, with dog poo and nappies in the yard and rubbish in the house.

81. SS saw that the children were always grubby and wore the same clothes day after day; they did not have appropriate clothes for the weather. The house was putrid and smelled.

82. SM saw that the house and surrounds were extremely bad. The children were dirty and always hungry. There was animal faeces in the lounge room and the house smelt.

83. JA saw that the deceased was almost always dressed in a shirt and a soggy nappy, regardless of the time of day. The children ate mainly bread and sausages, sometimes the accused would buy food for herself and the children would have bread. The house was unsanitary.

84. LA saw that the children wore inadequate clothes in winter and wore the same dirty clothes for days on end. The deceased often wore a dirty, drooping, wet nappy all day. The house was filthy, filled with clothes and rubbish, and smelt.

85. KA looked after the deceased, he was always hungry and she gave him food. His clothes were always dirty and his nappy was sagging. His face and hands were dirty. The house was full of animal mess, dirty clothes, and food lying around.

86. AW saw that the deceased was always in a dirty nappy and was inside most of the time. The accused’s children were filthy and hardly wore any clothes; they lived on pizza.

87. CG saw that the deceased and JE never had shoes, and were always dirty. The deceased often wore only a nappy, even outside in winter.

88. RD saw that the deceased and JE were neglected; JE was dirty and wore the same clothes for days.

89. The deceased and JA often visited LE; they always asked immediately for food, which LE gave them.

The accused’s family

90. The accused’s mother said that the children were often unclean and she asked the accused about bathing them. She was visiting the accused and the deceased was wearing only a singlet and nappy. She asked for some warm clothes for the deceased and the accused said “He hasn’t got any, KI’s got them.”

91. WT, the accused’s son, said that he was often left to care for the deceased whilst the accused was at K’s house. The house was dirty and there was no food.

92. RC visited the accused in xxx; the house was dirty and the deceased was always smelly, dirty and hungry.

93. LC saw the deceased and JE whilst she was visiting DT; both looked dirty and neglected.

94. AB visited the accused at xxx. The house was a mess with rubbish, dog faeces and urine, and clothes on the floor. There were mice and cockroaches. The children were dirty and wore inadequate clothes.

95. JT visited the accused at xxx on a number of occasions, the house was filthy and smelt, the deceased was dirty and smelly and needed a bath. JA also visited the accused at xxx. The house had the same hygiene problem as xxx.

Obsession with K

Residents

96. SS says that once the accused got together with K she didn’t care about her kids anymore.

97. ST saw that as soon as the accused was with K nothing else mattered to her and she had even less time for the kids.

98. SM saw that after the accused began her relationship with K her neglect of the children became even more severe.

99. KB noticed that the accused was more neglectful of the kids because she was with K, and more interested in K than the kids.

100. ZA saw that the accused wanted freedom from the kids and needed their father to take them away almost every day so that she didn’t have to look after them. This allowed her to continue her relationship with K uninterrupted. In May 2012 there were arguments between the accused and K; the accused was jealous that K wanted to spend time with his family.

101. KP saw that the accused blamed the kids a lot for the troubles in her relationship with K. The accused was willing to give the kids up to the father for K.

102. The accused told ST in a lawfully recorded telephone call on 10 August 2012 that K needed to kick her out of the house so that he could get his son back. She asked ST to talk to the detectives about what K was like and said, “I’m not letting him get his son back over me” and “just that I’ve got to leave so he can get E home. He’s not gonna get E home. We’ve got to make sure he doesn’t.”

103. The accused told JC in a lawfully recorded telephone call on 11/8/2012 that T (K’s ex de facto and E’s mother) was off the drugs and wanted to marry K and settle down. T only found out about the accused a couple of weeks ago. The accused said, “I just didn’t know out, a, how, how, a way out of this.”

The accused’s family

104. DT says that the accused left I with the kids and stayed with K overnight. She received calls from neighbours saying that the children were on their own; DT attended the house and took the children with her.

105. The accused told DT that she was upset about K having other women come to his house. The argument between the accused and K which culminated in the accused stabbing herself was caused by K talking to other women and putting money into their bank accounts.

106. The accused made WT care for the deceased whilst she was at K’s house.

107. YT saw that the accused was always at K’s house, most times she left the deceased and JE with JA. Every day KI would come to the house to check on the kids and stay until about 7.00pm.

108. KB saw that the accused neglected the children because of K.

109. AB spoke with the accused at 8.30pm on 24 July 2012. The accused was upset and crying and asked AB to look after the kids if something happened to her. On 25 July 2012 she spoke with the accused again. K meant everything to the accused and everything she said on that day was centred around K.

110. T knew that the accused listened to K’s phone calls; the accused and K had arguments over K talking with T. The accused was obsessed with K and did not like him going anywhere without her.

Recorded conversations

111. The accused told Ks, in a lawfully recorded telephone conversation at 8.00pm 21 August 2012, “You didn’t kill the kid.” The accused told KI, in a lawfully recorded telephone conversation at 8.12pm 16 October 2012 “You didn't kill my son, so fucking what does it matter.”

Arrest

112. At 8.50am Wednesday 26 June 2013, the accused was cautioned, arrested and taken to Lake Illawarra Police Station. She declined to participate in a further record of interview.

THE EVIDENCE

Evidence of neglect of the deceased

3. The first area of evidence relevant to the present application is contained in those parts of the statements set out below.

SM

4. In statement dated 14 August 2012, SM said the following:

“7. In my opinion I would say that the children were neglected by both (the accused) and KI. The kids were very unclean and always hungry. KI would often say to me that there was no food in the house. I recall at the time he said this to me he had a beer in his hand. I also remember (the accused) having two dogs and a rabbit in the lounge room of her house, There were faeces from these animals in the lounge room and you could smell the stench come from the house. You didn't even need to go inside to smell the odour. At one time the Department of Housing Contractors attended their home and refused to carry out any work due to the state of their living conditions. One of the contractors actually vomited when he walked from their house.

8. I have complained to the Department of Housing about the conditions of (the accused)'s home. I made many calls to them about the house and the poor condition of the premises. There was never anything done about it. I made numerous reports to the Department of Community Services relating (the accused)'s children. I reported to them about the conditions of the house and the neglect of the children and the pets (the accused) and I had at the house.

9. KI and (the accused) split when (the accused) began having a relationship with K. K lived down the road with his Mother and his son, E in xxx. I often spoke with his mother and delivered groceries to their home. KI didn't have much to do with K. When (the accused) began the relationship with K she kicked KI and JA out of the house. This was about in November last year. At this time (the accused)'s neglect of her children became even more severe. It got to a stage where she would leave (the deceased) at home alone. JE would roam the streets. As a result of this I telephoned (the accused's mum) about (the accused) leaving (the deceased) home alone and about her dog that continually barked because it was starving. I told her that (the accused) was leaving (the deceased) at home alone while she was down visiting K. By this time W and Y had gone to live with D in Queensland and JA was living with KI. (The accused) had custody of JE and (the deceased). I recall that one report I made to the Department of Housing in December, 2011. One of the Welfare Workers attended my home and interviewed me about (the accused) and what was going on in her house and with the children. I gave her the information that I believed that the children, animals and the house were being severely neglected. I have also made a report to the Police about (the accused)'s dog being locked in the house for about three weeks without food or water. The Police came to the house and informed the RSPCA of the neglected animal. They could see that it was locked in the house and it appeared to have a broken leg. The Police didn't break into the house and the RSPCA were supposed to attend the house. They didn't turn up and at some stage (the accused)'s brother came and took the dog.

…

11. I also recall one evening before Christmas, JA was staying at (the accused's) house. (The accused) was at K's house and J was staying at her house. About 10-30pm my daughter, Stacey telephoned me and told me that she was on her way home. I waited on the front verandah of my house. When the cab pulled up I saw what appeared to be a person lying under a blanket on the concrete slab next to (the accused)'s house. J came walking from across the road towards (the accused)'s house and as he walked past the blanket he pushed it and then I saw JA pop up from under the blanket. I heard J say to JA, "What are you doing here you are supposed to be down at your mothers." He said, "I went down bashing on the door and mum won't let me in." J said, "Come on mate come in here." J and JA walked past me and J said, "This is ridiculous, he's supposed to be staying at his mothers house." I reported this to the Department of Housing as DOCs hadn't really done anything about my previous reports.

12. I also recall another incident that occurred on the stairs opposite my townhouse. It was during the day when I was upstairs and looked out the window into the cul-de-sac. It was this year sometime before the accused moved to xxx with K. I saw a few of my neighbours gathered in the street on the concrete slab next door to (the accused)'s house. I saw (the deceased) walking towards L’s house. Her place is located next door to W's house. There are steps which lead down to her house. There are about 10 stairs and it is quite steep. (The deceased) walked to the top of the steps and I saw him fall from the top of the stairs to the bottom. L and W ran over to him and picked him up. I saw he was screaming. They took him over to (the accused) and asked for her to take him to get checked out. (the accused) said, "No, I'll take him home to bed, he will be fine." I believe that other people who witnessed this fall reported it to DOC's.

…

14. (The accused's) personality and demeanour changed when she started her relationship with K. Although the children were neglected when she was with KI her treatment and responsibility to the children decreased remarkably when she began seeing K. I recall that (the accused) was so happy to have a daughter and that JE went everywhere with her. She was her pride and joy. It was the same with the accused's dog. When K came into her life it was if (the accused) just didn't care about JE, (the deceased) or the dog. it was if they all never mattered anymore and that (the accused)'s entire focus was just on K.”

KB

5. In a statement dated 13 August 2012 KB said the following:

6. I've known (the accused) for about twelve months. I met (the accused) through a neighbour named W. W lives directly across from where (the accused) used to live. I don't know W's surname. At first I wasn't aware of the way (the accused) is. But after I got to know her and going into her home and visualising her as a mother, I thought yuck. Her house was pretty dirty. Not fit to bring children up in.

…

9. JE and (the deceased) were her two children that I had concerns for. I was concerned because I think (the accused) was neglecting them.

…

11. I used to see (the deceased) walking around in a nappy and a singlet. Sometimes, the nappy was down to his knees. He hadn't been changed from the night before. JE looked like she hadn't had her hair brushed. She didn't look like she had been washed, or had her teeth brushed. JE wore the same clothes that she had worn the day before.

…

21. This was when I started noticing the children being more neglected than usual. A couple of times I had to go over to watch (the deceased) and JE. (The accused) was with K and KI had to go somewhere.

22. I noticed (the accused) was more neglectful with the kids because she was with K. (the accused) was more interested in K than the kids. She was always looking for someone to palm the kids off to. That was the way it was for a while. At a time when (the accused) might as well have been living with K, KI got his own place. (The accused) was letting KI have JE and (the deceased).”

LA

6. In a statement dated 10 August 2012 LA said the following:

“7. It seemed to me that (the accused) was a very lazy person. Most of the time she would sit out and drink coffee with the neighbours all day and not doing anything around the house and did very little to care for the children. When she was with KI he would do most of the stuff around the house and look after the children. If one of the children was doing something or if (the accused) needed something she was always "KI do this" or "KI do that".

…

10. (The accused) did not care for her children very well. In winter the kids would be running around with hardly any clothes on. Often the kids would be in the same dirty" clothes for days on end. (the deceased) always had a runny nose, I never saw him without a runny nose. Quite a number of times I saw (the deceased) in a dirty drooping wet nappy that he had been in all night and day. About 12 months ago, possible around August 2011, I remember (the accused) and KI having an argument about who was going to change (the deceased)'s nappy. He had been in a saggy nappy, totally drenched, all day and neither of them would change the nappy. In the end W … piped up and said "Stop arguing and someone just change it". I think it was KI that ended up going and changing the nappy. In the two years that I lived there, I never saw them come home with a load of groceries.

…

12. Quite often the children would roam around the streets, unattended and unsupervised for hours, at all hours of the day and night. The children, including JA and JE, would be running around the streets and playing on the road unsupervised. Since (the accused) started a relationship with K, it got worse. (the accused) would spend most of her time at K's house. I would see her coming and going from her house just to get changed and then she would be off again.

…

17. More recently, (the accused) and I have not so much had a falling out but I have just been fed up with the way she looks after her children and I just don't want anything to do with her. When (the accused) gave up the custody of her two eldest boys last year I was just disgusted. She gave them up all because of her relationship with K and I just thought that was so wrong so basically I just stopped talking to her. Since she got together with K, (the accused) cared less for her children and they became more and more neglected. She didn't seem to care anymore where they were or what they did. Her personality changed once she got with K. Even with JE who (the accused) used to treat as her little princess because she was the only girl, she just didn't care about her anymore once K came along.”

ST

7. In a statement dated 21 August 2012 ST said the following:

“ 5. I recall that (the accused)'s kids were always dirty and unclean, especially (the deceased). He was always walking around with a dirty nappy. I would sometimes change his nappy. They were never really dressed appropriately for the seasons. He had bites from the fleas and mosquitoes over his body. A couple of times I had seen bruises over (the deceased)'s body. He would sometimes have them on his legs and arms. (the accused) would always say that he had fallen over. I remember seeing that he had an infected finger a couple of months ago before they moved to ... I recall it may have been his left index finger. I recall (the accused) said to me that he had slammed it in the door. I looked really bad and sore. I told (the accused) that she should take him to the Doctors about it. She never did as far I know. I never saw (the accused) hit the kids or discipline them. They were basically neglected by not living in a clean and tidy home.”

CS

8. In a statement dated 21 August 2012 CS said the following:

“7. The condition of (the accused)'s house was reported to the Corrimal Office of the Department of Housing several times by me and other residents. I did make one report to Kerry Cooper-Smith at the Corrimal Office and informed her that t (the accused)'s house was being kept in an extremely poor state. I recall it was last year sometime. I also told her that the children were being neglected as I had heard from other neighbours that the children had gone to them to get food. When I saw the children they were always dirty and unclean. I don't believe that anything was done by the Department of Housing relating to my report as nothing changed at (the accused)'s house.

…

9. I have made two reports to the Department of Community Services, last year. My report was about the condition of the house and the way the children were being looked after. I was worried that they were being neglected and not looked after properly by (the accused) and KI.”

KB

9. In statement dated 6 September 2012 KB said the following:

“35. I still hadn't met K. To me he was just another of (the accused)'s guys to neglect the kids over. This is how it seemed to me. It was a repeat of her relationship with KI. When she met KI, she ran off with him, her main concern was him, not the boys. This is how I ended up with WT and YT.

…

39. At the Christmas party, (the deceased) constantly wanted his mum. (the deceased) was crying for his mum. He just wanted his mum. I tried to pick him up to pacify him but it wouldn't last long, and he wanted his mum again. My mum tired, Debbie tried, but all he wanted was his mum. (the accused) just kept walking away from him, saying that she had had enough. She made it out like it was so hard. All (the deceased) wanted was to be picked up. (the deceased) was crying hysterically. He wanted his mum or nothing else. I was really shocked that (the accused) didn't grab him. I would have thought she would have wanted to pick him up. To me, it was like she couldn't be bothered. She was lazy.

…

43. I'd see (the deceased) walking around the centre going from one parent to another with his arms up crying and whinging. I could tell he wasn't happy. Both parents would ignore (the deceased), so he would walk back to the other parent. Both parents continued to ignore (the deceased). Eventually I said to KI, "(the deceased) is there. He wants you. He sounds like he is a real daddy's boy hey." (the deceased) was standing at KI’s feet. KI picked (the deceased) up and held him for a little while. (the deceased) was still whinging when I picked him up. I seen (the deceased) walking around again. This time he was happy.

…

55. I now have custody of JA and JE. I have asked JA why he didn't go and visit his mum. JA said, "I don't go there, mum is mean to me.

56. When JA, JE and (the deceased) were living with (the accused) and I they were always dirty. They never wore new clothes; they were always wearing clothes with holes in them. JE's hair didn't ever look like it had been brushed. The clothing they wore didn't even fit them. When JE came to me her hair was full of nits. I've had to treat her hair three times since she came to me. I had to cut JA's hair to remove the nits.”

AMB

10. In a statement dated 31 August 2012 AMB said the following:

“25. Their children were poorly looked after. They would eat, but I wouldn't consider the types of food they were eating as being nutritious or healthy. They would be unbathed, and getting around in unclean clothes. JA was allowed to do whatever he wanted and generally they exercised no supervision of their children. I distinctly recall on one occasion, JE came to our house. I remember, I found JE knocking on our front window. She was 2 to 3 years of age. I saw her dressed in a nightie with Disney princess print on it, and a nappy, and the clothes seemed appropriate for the weather conditions, but it didn't seem appropriate for the time of the day. She had no shoes on and her hair was very messy. It was about 11 'ish in the day. I thought that it was odd, because to get to our house, JE would have had to cross a road, which is quite dangerous because it has a blind spot. I remember Aaron asked JE, "Where's your mum?". I recall I her saying "Aunty Anne". I approached her and said, "Where's mummy?" She said, "At home."

26. We kept JE at our house for about an hour to see how long it would take for (the accused) and KI to realise that JE was missing. I don't think that (the accused) or I even knew she was gone. Aaron and I took JE home and I explained to her that JE had walked herself to our house. I expressed some concern at the fact that JE had been wondering the street, but over all they didn't even know that she was missing, which is what really troubled me.

…

29. Following the birth of my children, I suffered from Post Natal Depression. I saw how (the accused) interacted with (the deceased) and I strongly feel that (the accused) suffered from post natal depression. There was minimal nurturing, he wasn't been properly cared for. He would be dressed in the same clothes for a few days. He wasn't bathed that often, on occasions I would take him to my place and bath him. (The accused) never seemed to nurse (the deceased).

30. (The accused) seemed to spend a lot of time with her neighbours and (the deceased) would be left unattended in a bouncer or inside the house. She would often bring (the deceased) out in a camper, whilst she would talk to the neighbours, paying no attention to (the deceased). Otherwise most of the time, (the deceased) would be left inside the house.”

JT

11. In a statement of 29 August 2014 JT said the following:

“19. I saw KI hand (the deceased) to (the accused). (The deceased) was smiling at me because I was being silly towards him and my son. I offered to make (the deceased) a bottle. I was rolling a smoke and (the accused) had asked KI to make it. I sat my son in his pram with his toys. (The accused) agreed. I asked (the accused) how (the deceased) took his bottle. I can't remember what (the accused) told me. I walked back in to the house and went to the kitchen. I remember I was disgusted with the fact that I couldn't put a bottle together for (the deceased). I couldn't get the right teat, cap or bottle together because it was so messy. (The deceased) had no clean bottles. I yelled out to (the accused), "Does this boy have any clean bottles or what?" (The accused) then came in. She had (the deceased) on her hip, with (the deceased) facing outwards. (The accused) then showed me what teat went with what bottle. I then washed the bottle as best I could with a bottle brush. I made the bottle. KI this time, (the accused) had put (the deceased) down on the lounge inside.”

JA

12. In a statement dated 17 August 2012 JA stated the following:

“8. Initially the accused…JA…and JE and baby (the deceased) lived together at the address. I didn't start to stay with them until 2009, and I was only there on and off. Whilst I was staying with my sister and her family, I would say that the house was rarely maintained or cleaned regularly and the overall presentation was dirty and unkempt. (the accused) had rabbits and dogs living inside the house with them and the animals had free reign of the entire house. The laundry floor would always be full of clothes, I could never see the floor. There was always food scraps and grot (combination of dust, dog hair and mould) all over floor and walls in particular the skirting boards. (I am still trying today to clean this grot etc from the walls to an acceptable standard, and (the accused) has not lived there for 8 months)

9. All the children were dirty and unkempt and I don't think that (the accused) would get them to have regular showers. (I had regularly commented to (the accused) "Do you ever give the kids a shower) The babies would walk around with full wet nappies and they were not changed on a regular basis. (There were times while I was there that I would find a clean pair of pants for JE or nappies for (the deceased) because they were still walking around in their night time nappy or pants which were full of urine).

10. The little children used to permanently smell unclean and had a smell of urine and dog which clung to them. (the accused) would not care about they're appearance and JE never ever had her hair brushed or done. She was never dressed like a little girl and (the deceased) was rarely dressed in anything but a shirt and soggy nappy regardless of the weather or time of day.

…

13. On one occasion, I remember turning up at the house with my mother and found WT was left babysitting all the younger kids. I asked him at the time, where his mum and KI were and he told us they had gone to the Pub. This was about 6.30pm at night. My mother got straight onto the phone at the time and called (the accused) to yell at her about it. WT was only 13-14 at the time.

14. I would describe JE and (the deceased) as undernourished and underdeveloped children. They were both small for their age and (the deceased) was only just starting to walk recently and he did not know how to talk yet. I could pick up JE and (the deceased) in one arm because they were light weights. (If I try to pick up my own sons, who are the same age, they are noticeably a lot heavier). (The deceased) practically lived in his cot. (The accused) would use his cot as a prison, so she didn't have deal with him. He spent so much time in there that I think that impacted on his ability to learn to walk. He used to cry and cry and (the accused) would not do anything about it, WT or I would usually be the ones to feel sorry for him and get him out, even though he wasn't our responsibility. I couldn't help feeling sorry for the kids, because (the accused) was not interested in them. I would say things to her about her lack mothering skills and she used to just laugh at me or look at me with a stupid grin on her face. Even at night, when I was staying at the house, JE or (the deceased) would wake up crying and (the accused) and KI would just leave then cry for long periods of time, until I went and got them and sent them into their parent's room to sleep. (These occasions were only as recent as 6 -8 months ago)

…

20. During the first few weeks of this year, (the accused) would put the kids to bed upstairs between 7.30-9pm. She would then say to me, "I'm going down to K's, the kids are in bed". She would then leave and stay at K's the entire night. Most of the time, the kids would cry out as soon as she left or JE would come downstairs and I would get them up and look after them with YT. Many times, (the accused) would never even come home from K's the following morning. I would have to get the little kids out of bed and take them down to her at K's so she would feed them and look after them.

…

26. I do not know how (the deceased) died, or who is responsible for his death but I do know that for a long time, my sister (the accused) has not been invested in spending anytime looking after her own kids or making sure they are well cared for. They have really been neglected. She has been palming them off to whoever would take them off her hands. I hope (the deceased) hasn't died because they didn't want him, or so she can be with K and not have any responsibilities. I would like to know why he was killed, he was only a little boy and he was such a good little kid. He just used to sit with you or be near you and smile. He was not very hard to look after at all. He just wanted to be around people.”

The nature of the evidence

13. Before considering the submissions of the parties it is appropriate to make some general observations about the evidence.

14. Firstly it will be apparent even from a brief perusal of the passages identified by the Crown and set out above, that many parts of the evidence are plainly inadmissible as to form. Other parts of the evidence fall outside the purposes for which the Crown relies upon it, namely to establish:

1. the accused’s general neglect of the deceased;

2. the general conditions under which the deceased lived;

3. the general lack of care of the deceased by the accused; and

4. the deterioration in that level of care after the accused commenced a relationship with K.

15. Secondly, the Crown has anticipated that it will be put on behalf of the accused that she was, for want of a better description, a “good mother” who was appropriately attentive to the deceased’s needs, both medical and otherwise. The evidence is relied upon by the Crown as context evidence to meet such an argument and, in particular, to meet the proposition that the circumstances leading up to the deceased’s death were somehow isolated. Senior counsel for the accused did not take issue with the proposition that an argument of the kind which is anticipated by the Crown will, in fact, be made to the jury. On the contrary, senior counsel indicated that evidence will be placed before the jury which, if accepted, will establish that over a defined period the accused took the deceased to a medical practitioner for medical treatment on more than 30 occasions. The obvious purpose of such evidence is to provide the basis of a submission that the accused was, generally speaking, a responsible, as opposed to a neglectful, parent.

SUBMISSIONS OF THE PARTIES

16. The Crown submitted that the evidence in question was properly admissible as “context evidence”. Bearing in mind what the Crown has correctly anticipated will be put on behalf of the accused, it was submitted that the evidence was highly probative of the condition in which the deceased lived his life.

17. Senior counsel for the accused accepted that evidence of the circumstances in which the deceased lived, specifically photographs depicting the state of his home, had been admitted without objection and were therefore already before the jury. In these circumstances, senior counsel appeared to accept that the additional evidence now sought to be adduced by the Crown met the test of relevance set out in s. 55 of the Evidence Act 1995 (“the Act”). However, he submitted that such evidence was highly prejudicial and should be excluded.

CONSIDERATION

18. In Qualtieri v R [2006] NSWCCA 95 McClellan CJ at CL (with whom Howie and Latham JJ agreed) made the following observations (at [72]) in relation to evidence of the kind now pressed by the Crown. Although his Honour’s observations were made in the context of a case involving allegations of sexual assault, they are nevertheless apposite to a consideration of the present issue:

“The admission of evidence of a sexual relationship between a complainant and an accused other than evidence of the particular acts charged has caused difficulties in many cases. The origin of those problems lies in the difficulty which is sometimes experienced in categorising the purpose for which the evidence is tendered. Is it evidence tendered only for the purpose of throwing light upon the relationship at the time of the events which led to the offence (i.e. relationship evidence) or is it admitted as evidence of the sexual desire or feeling of the accused for the complainant (i.e. tendency evidence)? It is necessary to clearly identify the purpose of the tender so that its admissibility can be properly considered and appropriate directions given.”

19. His Honour went on to observe (at [80]) that when considering whether to admit evidence which may suggest prior illegal acts by an accused, it is essential to firstly identify the evidence, and the purpose of its tender. His Honour observed that if the evidence is tendered merely to provide context to the charge(s), it is necessary to consider whether any issue has been raised in the trial which makes that evidence relevant. He concluded that if the evidence is admitted, the trial judge must carefully direct the jury, both at the time at which the evidence is tendered and in the summing up, of the confined use that the jury may make of it. In this regard he emphasised the necessity to direct the jury, in clear terms, that the evidence has been admitted to provide background, so that other evidence can be understood and evaluated with a complete understanding of the nature and extent of relevant relationship(s). Finally, his Honour emphasised that the jury must be told that they cannot use the evidence as tendency evidence.

20. His Honour (with the concurrence of Hidden and Fullerton JJ) confirmed these observations in DJV v R [2008] NSWCCA 272 at [28]:

“Whatever be the position under the common law, the accepted position in New South Wales is that evidence of “relationship” may be admitted unless excluded after consideration has been given to s 135 or s 137 of the Evidence Act: Qualtieri; R v AH (1997) 42 NSWLR 702; R v Fraser (NSWCCA, unreported, 10 August 1998). However, it will only be admissible if it is relevant because it may assist in the evaluation of other evidence going to a fact in issue. In particular it may provide the “context” in which to understand a narrative in the sense suggested by Gleeson CJ and Heydon J in the passages above. Unless the other evidence in the trial and the issues which it raises make it relevant to prove the “context” in which the alleged offence or offences occurred, it will be almost inevitable that the discretion should be exercised to exclude the evidence. In most cases relevance will be occasioned by an apparent lack of complaint by a complainant whose will has been overborne from a young age or who has feared the consequences of making a complaint about a family member. Fear of not being believed or family breakdown may explain a lack of complaint when a charged act occurs. If the evidence is admitted the dangers of its misuse are significant and the judge’s directions to the jury must be clear so that the jurors understand the limited purpose for which they may consider that evidence.”

21. Observations to a similar effect were made by Simpson J (with whom Campbell JA and Whealy J agreed) in RG v R [2010] NSWCCA 173 (at [31]-[37]) and again by McClellan CJ at CL (with whom Simpson and Fullerton JJ agreed) in KTR v R [2010] NSWCCA 271 (at [90]).

22. More recently in Norman v R [2012] NSWCCA 230 Macfarlan JA (with whom Price and McCallum JJ agreed) said (at [26]):

“… relationship evidence may be admitted on the basis that, without it, the jury would be faced with a seemingly inexplicable or fanciful isolated incident. To enable complainants to give their account of events comprehensively, they must be permitted to place the incidents of which they complain in a meaningful context.”

23. Having cited the observations of Barwick CJ and Menzies J in Wilson v R [1970] HCA 17; (1970) CLR 334 at 337 and 344 respectively, his Honour went on to say (at [29]):

“On a number of occasions this Court has however emphasised that it is necessary to consider carefully the basis upon which "relationship" evidence is relevant in a particular case (see Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463 at [112]; DJV v R [2008] NSWCCA 272; 200 A Crim R 206 at [28] - [30] and RG v R [2010] NSWCCA 173 at [36] - [37]). In RG, for example, the basis of relevance was described as follows:

"The evidence of which complaint is now made, if believed, established a pattern of behaviour in which the complainant was relatively unsurprised by the conduct the subject of the charge, and made no response, nor any subsequent report. In that respect, it explains her behaviour, which may otherwise have appeared surprising and therefore implausible to the jury" (at [38]).”

24. Finally, in KJS v R [2014] NSWCCA 27 Hoeben CJ at CL (with whom Adams and RA Hulme JJ agreed) made the following observation (at [38]) regarding the admission of context evidence:

“There is another way of looking at the evidence which strengthens the conclusion that it was properly characterised as context evidence. Were the evidence to have been excluded, the jury would have been left with an unrealistic and entirely misleading picture of two apparently unconnected sexual assaults, separated in time by some three or so years, which occurred in startling isolation. This was in the context of an otherwise ordinary father-daughter relationship about which ISS made no complaint. That would have placed the Crown case in a position of considerable unfairness.”

25. In the present case the Crown has made it clear that it does not rely upon the evidence as tendency evidence, but as evidence of what is submitted to be the correct context in which the relevant events took place. Bearing in mind that stated purpose, and in accordance with the approach set out in Qualtieri (supra), it is firstly necessary to consider whether any issue has been raised in the trial which makes that evidence relevant.

25. As I have previously observed, the submissions of senior counsel for the accused concentrated upon what was said to be the prejudicial effect of the evidence. Such an approach effectively assumes that the evidence is relevant and I am satisfied that this is so. Further, and as I have previously noted, senior counsel for the accused proposes to place before the jury evidence of the accused having repeatedly taken the deceased to medical practitioners for treatment. The obvious purpose of eliciting that evidence is to provide an evidentiary basis for a submission that the accused was a loving and caring, as opposed to neglectful, mother. The evidence now sought to be tendered by the Crown is clearly relevant in these circumstances. Absent such evidence, the jury could be left with an unrealistic and misleading picture of the relationship between the accused and the deceased (see KJS (supra)).

26. Accepting that the evidence is relevant there is, in my view, no proper basis for its exclusion pursuant to the provisions of s. 137 of the Act. Given the purpose for which it is tendered, there is no danger of it being unfairly prejudicial in the sense described in R v Yates [2002] NSWCCA 520 at [252] per Wood CJ at CL (RS Hulme J and Buddin J agreeing). In particular, and bearing in mind the directions that I will give to the jury both at the time of the admission of the evidence and in the summing up, there is no danger of the jury using the evidence in a way which involves the adoption of an illegitimate form of reasoning, nor is there a danger of the jury giving the evidence undue weight.

27. For all of these reasons, I propose to allow the Crown to lead the evidence on the basis outlined. However in reaching that conclusion, two things must be made clear.

28. Firstly, and as I have already observed, much of the evidence is in an inadmissible form. It will obviously be necessary for the Crown to carefully lead the evidence in a form which is properly admissible.

29. Secondly, I make it clear that the evidence that I propose to allow is restricted to evidence of the accused’s treatment of the deceased, and is not to extend to the treatment of any of the accused’s other children of the accused.

Evidence of previous alleged assaults upon the deceased

31. The Crown also seeks to lead evidence of previous assaults said to have been perpetrated by the accused on the deceased. This evidence comes from two sources, the first of which is paragraph 6 of the statement of SM:

“There was a lot of yelling and verbal abuse from KI and (the accused) towards the children. (the accused) would also yell abuse at KI. They consistently swore at each. 1 recall (the accused) yelling at JE when JE had gone outside the entrance to their house, "Get your f'"n self back in here." Or she would yell at KI, "Get you f""n daughter back in here." I heard her yell at KI, "Feed the f'"n baby or change the f ""n baby's nappy." She would yell at the kids if they were crying and yell, "Shut your f"’n crying." I never witnessed (the accused) or I hit the children. I did see (the accused) grab (the deceased) by the arm one day when there was a car coming into the complex. (the deceased) was crawling on the road. (the accused) walked over to (the deceased), she had a cigarette in one hand and picked (the deceased) up by the arm and threw him over the front fence of their home. The fence is about three bricks high and (the deceased) landed on the dirt. I remember him whimpering a bit. He then got up and crawled away. It was probably about a metre in distance that (the accused) would have thrown him. I also recall hearing JE screaming for hours of a night. This was constant. I only saw JE with a few bruises on her legs. I just put this down to her being active and running around the complex and playing.”

32. The second source of the evidence is in paragraph 8 of the statement of CS:

“I have never seen (the accused) or KI hit their children. I did see (the accused) grab hold of (the deceased) on one occasion. At this time a car was coming into the complex and (the deceased) was on the driveway and as the car approached, (the accused) walked towards (the deceased) and grabbed him by the arm, picked him up and threw him over their front fence. He fell to the ground. It didn't appear that he was hurt. He got up and walked. I have heard (the accused) swearing at the kids on many occasions.”

Submissions of the parties

33. The Crown made it clear that the evidence was not relied upon as tendency evidence, but as further evidence of the relationship between the accused and the deceased. The Crown submitted that such displays of violence were probative of the attitude and feelings of the accused towards the deceased. It was submitted that what had occurred between the accused and the deceased at an earlier point in time was relevant to what had occurred at the time of the commission of the alleged offence and that this provided a basis for admissibility.

34. Senior counsel for the accused submitted that the evidence was not relevant. In this regard, he pointed, in particular, to the fact that the accused was no longer charged with murder, such that it was no longer alleged by the Crown that she had deliberately caused the deceased’s death. In the event that I concluded that the evidence was relevant, senior counsel submitted that it warranted exclusion pursuant to s. 137 of the Act.

Consideration and conclusion

35. In my view, given the way in which the Crown now puts its case, the evidence is not relevant. The Crown case is one of manslaughter by gross criminal negligence. It is no part of the Crown case that the accused engaged in any deliberate act, as a consequence of which the deceased was killed. In these circumstances, the decisions in R v Toki [2000] NSWSC 999; (2000) 116 A Crim R 536 and FDP v R [2008] NSWCCA 317, both of which were relied upon by the Crown, are distinguishable.

36. Even if I had concluded that the evidence was relevant, I would have excluded it pursuant to s. 137 of the Act. There would, in my view, be a real risk that the evidence, if admitted, would be used by the jury in a way which involved the adoption of an illegitimate form of reasoning.

37. Accordingly, the evidence in excluded.

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Decision last updated: 26 February 2015