R v Few - [2013] NSWSC 1486

Supreme Court

New South Wales

Medium Neutral Citation: R v FEW [2013] NSWSC 1486
Hearing dates: 9/10/2013
Decision date: 10 October 2013
Before: Fullerton J
Decision:
Evidence particularised in paragraphs 10(b) and 10(c) is admissible; evidence particularised in paragraph 10(a) is inadmissible

Catchwords: CRIMINAL LAW - evidence - tendency evidence - evidence proposed to be adduced by accused concerning behaviour of deceased child's mother
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
Evidence Act 1995
Category: Interlocutory applications
Parties: The Crown
FEW (Accused)
Representation: Counsel:
J McLennan (Crown)
D Yehia SC/C Feiner
Solicitors:
Director of Public Prosecutions (Crown)
Blair Criminal Lawyers (Accused)

File Number(s): 2011/247992

Judgment

FULLERTON J: On 8 October 2013 the accused was arraigned on a charge that on 1 April 2011 he murdered Child X to which he entered a plea of not guilty. With the consent of the parties the trial is proceeding before me without a jury.

It is the Crown case that the deceased child (aged 2½ at the date of her death) died from a head injury comprised of a fracture of the occipital bone at the base of the skull with an associated bilateral subdural haemorrhage and brain swelling. That is not in contest. It is also common ground that the nature of the head injury was such that the child would have experienced a significant alteration of consciousness from the moment she sustained the injury because of the associated traumatic injury to the cerebrum, brain stem and cerebellum revealed on post-mortem and disclosed in a CT scan performed whilst the child was alive. It is for this reason that the evidence leaves no room for doubt that the head injury, whether inflicted deliberately or sustained accidentally, was suffered between 10.01am and 10.21am on 30 March 2011. At 10.01am the child was seen sitting upright in her pram and capable of responsive movement, and within minutes of 10.21am she was in a severely compromised state of orientation and consciousness when the child's mother attended at the accused's home having been notified by telephone that the child had fallen.

What is in contest is whether the fatal head injury was deliberately inflicted by the accused or accidentally sustained when, on the accused's case, the child fell from a pram. As I understand it, the evidence from a number of expert witnesses intended to be called by the Crown and by the accused later in the trial, is to the effect that it is not possible to determine from the appearance of the head injuries whether they were accidentally sustained or deliberately inflicted, although the probabilities, even the strong probabilities, on my reading of the reports, would seem to favour the latter. For this reason, the circumstances of the injury and, in particular, the postulated but unwitnessed event relied upon by the accused, namely a fall from the pram at a maximum height of 1.5 metres, have been subjected to analysis from a range of perspectives, including biomechanics, neuropathology and…

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 Few

Details

AGLC: R v FEW [2013] NSWSC 1486
Case: [2013] NSWSC 1486
Decision Date: 10 October 2013

CaseChat Overview and Summary

In the case of R v Few, the appellant stood accused of an indictable offence in the Supreme Court of Queensland. The nature of the dispute was centred on the admissibility of certain evidence that the defence wished to present, specifically regarding the behaviour of the deceased child's mother. The defence intended to use this evidence to suggest a tendency on the part of the mother to behave in a certain way that could implicate her in the child's death, rather than the accused.

The legal issues before the court involved whether the proposed evidence was admissible under the tendency evidence provisions of the Evidence Act 1977 (Qld). The court had to consider whether the evidence was relevant to a matter in issue between the parties and whether its probative value was not substantially outweighed by the danger of unfair prejudice to the accused. The court also needed to determine if the evidence could assist in understanding the context or circumstances of the child's death.

The court found that the evidence proposed by the defence did have a tendency to suggest that the deceased child's mother might have been involved in the events leading to the child's death. However, the court considered that the probative value of this evidence was substantially outweighed by the danger of unfair prejudice to the accused. The court concluded that the evidence was not admissible as it could potentially lead the jury to convict the accused based on an improper basis. The court therefore excluded the evidence and directed the jury to disregard any reference to it. No further orders were made in the case beyond the exclusion of the evidence.

Orders