R v LN; R v AW (No. 1) - [2017] NSWSC 119

Supreme Court

New South Wales

Medium Neutral Citation: R v LN; R v AW (No. 1) [2017] NSWSC 119
Hearing dates: 20 February 2017; 21 February 2017
Date of orders: 23 February 2017
Decision date: 23 February 2017
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
Application by the Crown to rely upon the evidence contained in the tendency notice of 9 February 2017 with respect to LN for tendency purposes is granted.
Application by the Crown to rely upon the evidence contained in the tendency notice of 9 February 2017 with respect to AW for tendency purposes is declined.

Catchwords: CRIMINAL LAW - murder trial - mother and stepfather charged with murder of three-year old son - Crown alleges that mother inflicted fatal injury to child with intent to kill or cause grievous bodily harm - Crown case that stepfather party to extended joint criminal enterprise with mother to harm the child with mother expressing desire to kill or harm the child - evidence will be before jury for other purposes - evidence that each accused struck and mistreated child over seven-week period before death of child - Crown seeks to rely upon this evidence for tendency purposes - application of ss.97 and 101 Evidence Act 1995 - held that evidence may be relied upon against mother for tendency purposes but not as against stepfather
Legislation Cited: Criminal Procedure Act 1986
Evidence Act 1995
Evidence Regulation 2015
Cases Cited: AC v R [2016] NSWCCA 21
Aravena v R [2015] NSWCCA 288
BC v R [2015] NSWCCA 327
DAO v R [2011] NSWCCA 63; 81 NSWLR 568
DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758
Elomar v R [2014] NSWCCA 303; 316 ALR 206
Hughes v R [2015] NSWCCA 330
IMM v The Queen [2016] HCA 14; 257 CLR 300
R v Ford [2009] NSWCCA 306; 201 A Crim R 451
R v Lockyer (1996) 89 A Crim R 457
Sokolowskyj v R [2014] NSWCCA 55; 239 A Crim R 528
Texts Cited: ---
Category: Procedural and other rulings
Parties: Regina (Crown)
LN (Accused)
AW (Accused)
Representation:
Counsel:
Ms MM Cunneen SC (Crown)
Mr EW Wilson SC (LN)
Ms A Moen (AW)
Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid NSW (LN)
Matouk Joyner Lawyers (AW)

File Number(s): 2014/271972 (LN)2014/274229 (AW)
Publication restriction: On 18 April 2017, each of LN and AW was found guilty of murder by the jury. The name of their daughter (described in this judgment as “Mary”) may not be identified by operation of s.15A Children (Criminal Proceedings) Act 1987, which also operates with respect to the names of LN and AW, the publication of whose names would tend to identify their daughter. The first name of the victim, Joseph or Joey, may be published. Two witnesses who were under 18 years of age as at 3 August 2014, are referred to as SM and BB respectively at [36]ff.

Judgment

JOHNSON J: Each of…

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 119
Decision Date: 23 February 2017

CaseChat Overview and Summary

The appellants, LN and AW, were charged with the murder of LN and AW's three-year-old son. The Crown alleged that LN inflicted the fatal injury with intent to kill or cause grievous bodily harm, and that AW was a party to an extended joint criminal enterprise with LN to harm the child, with LN expressing a desire to kill or harm the child. The case proceeded to trial before a jury, with evidence presented for various purposes. The Crown sought to rely on evidence of the appellants striking and mistreating the child over a seven-week period before the child's death for tendency purposes. The application of sections 97 and 101 of the Evidence Act 1995 was considered in the context of this evidence.

The court considered whether the evidence of the appellants' treatment of the child over the seven-week period could be relied upon for tendency purposes. The court held that the evidence could be relied upon against LN for tendency purposes, as it demonstrated a propensity to harm the child. However, the court held that the evidence could not be relied upon against AW, as there was insufficient evidence to establish that AW was party to an extended joint criminal enterprise with LN to harm the child. The court found that the evidence did not demonstrate a propensity on AW's part to harm the child, and therefore could not be relied upon for tendency purposes against him.

The court's decision had significant implications for the trial, as the Crown's case relied heavily on the evidence of the appellants' treatment of the child over the seven-week period. The court's ruling limited the extent to which this evidence could be relied upon against AW, potentially weakening the Crown's case against him. The court's decision also highlighted the importance of establishing a joint criminal enterprise where multiple appellants are charged with an offence, and the need for sufficient evidence to demonstrate each appellant's involvement in the enterprise.

Orders