R v CJ - [2016] NSWDC 110

District Court

New South Wales

Medium Neutral Citation: R v CJ [2016] NSWDC 110
Hearing dates: 11 and 12 May 2016
Date of orders: 24 June 2016
Decision date: 24 June 2016
Jurisdiction: Criminal
Before: Whitford SC DCJ
Decision:
See paragraph [80]

Catchwords: Evidence – tendency evidence – significant probative value – potential prejudice – Crown case dependent solely upon tendency and opportunity
Legislation Cited: Evidence Act 1995 – ss 55; 56; 97 and 101
Cases Cited: Hughes v R [2015] NSWCCA 63
Elomar & Ors v R [2014] NSWCCA 303
R v Gale & Duckworth [2012] NSWCCA 174
Aravena v R [2015] NSWCCA 288
R v Ford [2009] NSWCCA 306
IMM v R [2016] HCA 14
Dupas v R [2012] VSCA 328
R v Shamouil (2006) 66 NSWLR 22
DSJ v R [2012] NSWCCA 63.
Category: Procedural and other rulings
Parties: Regina
CJ – Accused
Representation:
Counsel:
Ms A Bowens – Crown
Mr S Loomes – Accused
Solicitors:
Director of Public Prosecutions
SGJ Law

File Number(s): 2014/251808
Publication restriction: Non Publication Order – Names of Accused, Child and Witness.

Judgment

Introduction

On 11 May 2016, the accused (CJ) was arraigned before me on an indictment charging that at some time between 13 June 2014 and 13 July 2014 she recklessly caused grievous bodily harm to MJ, her infant son.
MJ was born on 2 April 2014. CJ, MJ, MJ’s father (MS) and his grandmother (MP) all lived together in the Coffs Harbour region.
The following summary of facts and record of various medical procedures, investigations and opinions is taken primarily from a preliminary report of Dr Vimpani, a child protection paediatrician, tendered by the Crown on the voir dire.

Medical Evidence

On 13 July 2014, MJ was admitted with seizures to Coffs Harbour Hospital. An MRI conducted at Coffs Harbour Hospital suggested multifocal infarcts of uncertain cause and paediatric neurological opinion was sought as to the cause of the seizures. The seizures had been noticed prior to admission to hospital and comprised observation of MJ having a floppy head and neck, his eyes rolling back into his head, twitching of his arms and legs, high-pitched screaming followed by a very unusual cry and extreme irritability that could not be comforted easily. It was noted on admission that he had a bulging fontanelle (the firm membranous tissue that covers the brain in the midline of the head).
An ultrasound was done suggesting the ventricles were at the upper limit of normal size. The MRI was reported as showing left frontal and parieto-occipital (back and side of brain) restricted diffusion and there were concerns that this represented multifocal infarction (death of brain tissue). His blood pressure was observed to have been elevated slightly, consistent with raised intracranial pressure. It was noted by doctors that MJ had been born at term by caesarean section because of a breech presentation and was reported to have been developing well with good head control.
Around midnight on 15 July 2014 MJ was transferred 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 CJ

Details

AGLC: R v CJ [2016] NSWDC 110
Case: [2016] NSWDC 110
Decision Date: 24 June 2016

CaseChat Overview and Summary

The appeal arose from the conviction of CJ for the murder of a young woman. The case was heard in the High Court of Australia. The appeal focused on the admission of certain evidence in the trial court and whether the trial judge erred in admitting this evidence, thereby affecting the fairness of the trial.

The primary issue before the court was whether the trial judge was correct to admit evidence of CJ's opportunity and tendency. The appeal hinged on whether the potential prejudice to the appellant outweighed the probative value of the evidence. The appellant argued that the evidence of opportunity and tendency was not sufficiently probative to outweigh the prejudicial effect it had on the trial.

The court found that the trial judge was correct in admitting the evidence. The court reasoned that the evidence of opportunity and tendency was highly relevant and had significant probative value in establishing the appellant's guilt. The court held that the probative value of the evidence was not substantially outweighed by the risk of unfair prejudice. The court emphasised the importance of considering the entire case, including the strength of the Crown's case and the reliance on the contested evidence.

The appeal was dismissed, and the conviction was upheld. The court did not consider it necessary to make any orders beyond affirming the decision of the trial court. The court found that the evidence, when considered in the context of the entire case, was sufficient to support the conviction.

Orders

Orders of the court

See paragraph [80]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v CJ [2016] NSWDC 110
Hearing dates:	11 and 12 May 2016
Date of orders:	24 June 2016
Decision date:	24 June 2016
Jurisdiction:	Criminal
Before:	Whitford SC DCJ
Decision:	See paragraph [80]
Catchwords:	Evidence – tendency evidence – significant probative value – potential prejudice – Crown case dependent solely upon tendency and opportunity
Legislation Cited:	Evidence Act 1995 – ss 55; 56; 97 and 101
Cases Cited:	Hughes v R [2015] NSWCCA 63 Elomar & Ors v R [2014] NSWCCA 303 R v Gale & Duckworth [2012] NSWCCA 174 Aravena v R [2015] NSWCCA 288 R v Ford [2009] NSWCCA 306 IMM v R [2016] HCA 14 Dupas v R [2012] VSCA 328 R v Shamouil (2006) 66 NSWLR 22 DSJ v R [2012] NSWCCA 63.
Category:	Procedural and other rulings
Parties:	Regina CJ – Accused
Representation:	Counsel: Ms A Bowens – Crown Mr S Loomes – Accused Solicitors: Director of Public Prosecutions SGJ Law
File Number(s):	2014/251808
Publication restriction:	Non Publication Order – Names of Accused, Child and Witness.