R v BT - [2017] NSWSC 1094

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v BT [2017] NSWSC 1094
Hearing dates: 10, 11, 12 July 2017
Date of orders: 12 July 2017
Decision date: 12 July 2017
Jurisdiction: Common Law - Criminal
Before: Hidden AJ
Decision:
Tendency evidence admitted in part

Catchwords: CRIMINAL LAW – Admissibility of tendency evidence – accused on trial for the murder of his baby – Crown sought to lead evidence of prior acts of violence by the accused against the baby and against the other children in his care – evidence in respect of the baby admitted but the evidence in respect of the other children rejected
Legislation Cited: Evidence Act 1995
Cases Cited: Hughes v The Queen [2017] HCA 20
R v LN; R v AW (No 1) [2017] NSWSC 119
Category: Procedural and other rulings
Parties: Crown – The Queen
Accused – BT
Representation:
Counsel:
Crown – Ms Cunneen SC with Mr PJ Strickland
Accused – Mr H White
Solicitors:
Crown – Ms H Rallis - Director of Public Prosecutions (NSW)
Accused – Ms E McWilliams - McWilliams Lawyers

File Number(s): 2015/335406
Publication restriction: No

Judgment on the ADMISSIBILITY OF TENDENCY EVIDENCE

HIDDEN AJ: The accused, BT, is on trial for the murder of his infant daughter, HT. HT was 8 weeks old at the time, and she met her death at the home where the accused lived with her mother, TP, who is the accused’s partner. Also living at the home was their older child, JT, who was just under 2 years old at the time. In addition, there were two children of TP from a previous relationship, TF, then aged 6 years, and CF, then aged 4. Other members of TP’s family also lived there, including her mother, GP.
HT was born prematurely on 14 June 2014 and remained in hospital until 29 June 2014, when she was discharged into the care of her parents. It is the Crown case that over a period thereafter the accused inflicted violence upon her until the afternoon of 11 August 2014, when an act of violence on his part led to her death. At the time of the incident, the only persons at the home were the accused, HT and JT. The Crown case as to the manner in which the death was caused is, accordingly, circumstantial.
It was in the early hours of 12 August 2014 that TP observed that HT was unconscious and apparently not breathing. After a 000 call, ambulance officers attended the home. The baby could not be resuscitated and was pronounced dead on arrival at Westmead Childrens’ Hospital.
A post mortem examination was conducted the following day by Dr Issabella Brouwer, forensic pathologist. Dr Brouwer found the direct cause of death to be blunt force craniospinal injury, noting a substantial injury to the back of the head which caused an occipital skull fracture. The doctor also noted retinal haemorrhages, and multiple injuries to the face and head indicative of blunt force trauma.…

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.

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Details

Case: [2017] NSWSC 1094
Decision Date: 12 July 2017

CaseChat Overview and Summary

The accused, BT, was on trial for the murder of his infant son. The Crown sought to introduce evidence of prior acts of violence by BT against the deceased baby and other children in his care, which BT argued was not relevant to the murder charge. The trial court had to determine whether the evidence of BT's prior acts of violence was admissible under the provisions of the Evidence Act. Specifically, the court had to consider whether the evidence had probative value in proving a fact in issue in the proceedings and whether the prejudicial effect of the evidence outweighed its probative value.

The court examined the statutory criteria for the admissibility of tendency evidence, focusing on whether the evidence of prior acts of violence was relevant to prove a fact in issue other than the accused's disposition to commit the offence. The court found that the evidence of BT's acts of violence against the deceased baby was relevant to issues such as intent and the absence of accident, mistake, or self-defence, and thus had probative value. However, the court held that the evidence of BT's acts of violence against other children in his care did not have sufficient probative value to outweigh its prejudicial effect, as it did not directly relate to the specific circumstances of the murder charge.

BT was convicted of the murder of his infant son. The court admitted evidence of BT's acts of violence against the baby but excluded evidence of his acts against other children. The decision underscores the careful balancing act required by courts when considering the admissibility of tendency evidence, particularly in criminal cases involving allegations of serious violence.

Orders