R v Barrett (No 1) - [2019] SASC 91

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v BARRETT (No 1)
[2019] SASC 91
Reasons for Ruling of The Honourable Justice Vanstone
4 June 2019
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - JOINDER OF PERSONS OR COUNTS
Accused charged with two counts of manslaughter of babies delivered following planned home births at which she was allegedly acting as a midwife - where the prosecution seeks to adduce discreditable conduct evidence - whether evidence of each count is admissible in relation to the other - whether evidence of the accused's "general philosophy" regarding home birth admissible - whether evidence of a large number of other home births where the accused was present, unrelated to the charges, is admissible - whether an order for separate trials should be made.
Held: evidence tending to demonstrate the accused's philosophy is admissible where able to be clearly proved. Evidence relating to the two counts is cross-admissible. Evidence of the accused's general behavior at other births and elsewhere, though relevant, is excluded.
Evidence Act 1929 (SA) s 34P, referred to.

R v BARRETT (No 1)
[2019] SASC 91
Criminal.
VANSTONE J.
Ruling on admissibility of evidence and application for separate trials

Lisa Jane Barrett is charged with two counts of manslaughter. The prosecution alleges that she rendered services in the role of a midwife to two women, one in 2011 and the other in 2012. For present purposes I shall refer to the mothers of the victims as A and B. Those services were said to have been provided both in advance of the births and during the labour of each woman. In each instance what was planned was a home birth. There were known risk factors in relation to each of the pregnancies, although they were very different. Both children were born alive, but each was brain damaged at birth and died not long thereafter.
The prosecution alleges that the accused was criminally negligent in relation to the deaths of both babies. That negligence is said to have included the advice that was given to each mother ahead of her labour – including misleading advice and the omission to give relevant advice – and conduct during each woman’s labour, including a failure to advise, in a timely manner, that the home birth should be abandoned and each mother immediately transferred to a hospital.
The prosecution has filed a notice of intention to adduce discreditable conduct evidence. That evidence falls into a number of categories. First, it is contended that the evidence of each count in admissible in relation to the other count. Second, it is contended that evidence of the accused’s conduct in relation to multiple separate occasions of performing the role of a midwife at a home birth should be admitted. It is proposed that this evidence would be given, in the main, by the witnesses Honey Newman, Hannah Rice and Kristen Cheesman, who are or were friends of the accused and who worked alongside her for various periods prior to…

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 Barrett (No 1)

Details

AGLC: R v Barrett (No 1) [2019] SASC 91
Case: [2019] SASC 91
Decision Date: 4 June 2019

CaseChat Overview and Summary

In the Supreme Court of South Australia, Lisa Jane Barrett was charged with two counts of manslaughter in relation to the deaths of two babies following home births where she allegedly acted as a midwife. The prosecution sought to adduce discreditable conduct evidence to support their case. This included evidence of the accused's "general philosophy" regarding home births, as well as evidence of her conduct at other home births unrelated to the charges. The court had to decide whether this evidence was admissible under the Evidence Act 1929 (SA) s 34P, and whether an order for separate trials should be made.

The court found that evidence tending to demonstrate the accused's philosophy was admissible where able to be clearly proved. This evidence was considered to have strong probative value in relation to the issue of what was said and done by the accused during the two pregnancies which had led to the charges. However, evidence of the accused's general behavior at other births and elsewhere, though relevant, was excluded as it was not strongly probative of the relevant factual issues and would potentially obscure the central issues in the trial. The evidence relating to the two counts was cross-admissible, insofar as there was evidence of things said and not said to the mothers relevant to the health and wellbeing of the foetus, the baby and the mother herself.

The court dismissed the defence application for an order for separate trials, finding that having only one trial would mean that many witnesses would not have to attend at two trials and, to some extent, give the same evidence twice. The evidence of each count was admissible with respect to the other count on the question of what the accused said and did in relation to each woman, but any conclusion of guilt was not admissible in proof of the other count.

The final orders of the court were as follows: 1) The defence’s objection to the prosecution leading discreditable conduct evidence was sustained in part; 2) The defence application for an order for separate trials was dismissed; 3) The evidence of each count was admissible with respect to the other count on the question of what the accused said and did in relation to each woman, but any conclusion of guilt was not admissible in proof of the other count.

Orders