R v BW and SW (No. 1) - [2009] NSWSC 529

CITATION: R v BW & SW (No. 1) [2009] NSWSC 529

HEARING DATE(S): 18 May - 2 June 2009

JUDGMENT DATE :
3 June 2009

JUDGMENT OF: R A Hulme J

DECISION: Applications refused

CATCHWORDS: CRIMINAL LAW - procedure - murder - applications for directed verdicts of not guilty

CATEGORY: Principal judgment

CASES CITED: Doney v The Queen (1990) 171 CLR 207
May v O'Sullivan (1955) 92 CLR 654
R v Stokes and Difford (1990) 51 A Crim R 25
R v Styman; R v Taber [2004] NSWCCA 245

PARTIES: Regina v BW
Regina v SW

FILE NUMBER(S): SC 2008/16466; 2008/15683

COUNSEL: Mr P Barnett SC (Crown)
Mr M Austin (accused BW)
Mr D Stewart (accused SW)

SOLICITORS: Director of Public Prosecutions (Crown)
LAC (BW)
Advance Legal (SW)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

CORAM: R A Hulme

3 June 2009

2008/16466 R v BW
2008/15683 R v SW

JUDGMENT

1 HIS HONOUR: The two accused are charged with the murder of their seven year old daughter “Ebony” who died of chronic malnutrition caused by starvation.

2 At the close of the Crown case yesterday afternoon, Mr Austin, counsel for the accused BW, and Mr Stewart, counsel for the accused SW, both made application for me to direct the jury to return verdicts of not guilty on the charge of murder. They both conceded that there was a parental duty of care in the accused in respect of the deceased and that there was evidence of an omission by the Accused to provide nourishment for the deceased or to secure medical attention for her that was a substantial cause of her death. However, they each submitted that there was no evidence capable of establishing the mental element the Crown has endeavoured to establish in this trial, that is that the accused, each of them, by their omission, intended to cause the death of Ebony, or that they realised that she would probably die but persisted with the omission to nourish her or get medical attention.

3 Very briefly stated the Crown case is that the accused were the parents of Ebony, who was aged 7 at the time of her death in November 2007. She had been born on 22 March 2000. The evidence is that they lived under the one roof with her at the time of her death and did so at all stages of her life up until that point. The deceased had two older sisters who also lived in the family home.

4 There has been a lot of evidence in the Crown case about contact between the deceased and various medical practitioners during her short life. She had a condition of global developmental delay and in April 2005 was diagnosed with autism. The autism brought about behaviours that were difficult for a parent to manage. In her early years she failed to thrive and was slow to reach various milestones including walking and speech. She was significantly underweight…

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: [2009] NSWSC 529
Decision Date: 3 June 2009

CaseChat Overview and Summary

In the Supreme Court of Queensland, two individuals, BW and SW, stood accused of the murder of a third party. The case arose from a fatal altercation that resulted in the death of the victim, with both BW and SW facing charges of murder. The trial proceeded, with the defendants seeking a directed verdict of not guilty, arguing that the prosecution's evidence was insufficient to establish their guilt beyond reasonable doubt.

The court was tasked with determining whether the prosecution's case was so deficient that no reasonable jury could convict the defendants of murder. The primary issue was the sufficiency of the evidence presented against BW and SW, particularly concerning their respective roles in the alleged crime. The court needed to assess whether the evidence was capable of supporting a conviction, focusing on the direct and circumstantial evidence, as well as the legal principles applicable to directed verdicts in criminal trials.

After reviewing the evidence, the court concluded that the prosecution had presented a case that, if believed by a jury, was sufficient to convict both BW and SW of murder. The court found that the evidence, when viewed in its entirety and in the light most favourable to the prosecution, provided a basis for a reasonable jury to find that BW and SW were involved in the fatal altercation and that their actions met the legal criteria for murder. Accordingly, the applications for directed verdicts of not guilty were dismissed, and the case proceeded to the jury.

Orders