R v LN; R v AW (No. 11)

[2017] NSWSC 1430

Supreme Court

New South Wales

Medium Neutral Citation:	R v LN; R v AW (No. 11) [2017] NSWSC 1430
Hearing dates:	11-12 April 2017
Date of orders:	12 April 2017
Decision date:	20 October 2017
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	Publication of reasons for rulings on applications for further directions at conclusion of summing-up
Catchwords:	CRIMINAL LAW - murder trial – applications for further directions at conclusion of summing-up – publication of reasons for rulings
Legislation Cited:	---
Cases Cited:	Burns v The Queen (1975) 132 CLR 258; [1975] HCA 21 EM v The Queen (2007) 232 CLR 67; [2007] HCA 46 R v LN; R v AW (No. 1) [2017] NSWSC 119 R v LN; R v AW (No. 9) [2017] NSWSC 376
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:	---

Judgment

1. JOHNSON J: This judgment contains my reasons with respect to applications made by counsel for each Accused for redirections at the conclusion of my summing-up, in particular where the application was refused (SU223). It also recounts questions from the jury during deliberations and the course taken by the Court in that respect.

2. The Accused, LN and AW, stood trial for the murder of a three-year old child, Joseph or Joey, who was the son of LN and the stepson of AW. The way in which the Crown put its case against each Accused was summarised in R v LN; R v AW (No. 1) [2017] NSWSC 119 at [5]-[55] and in R v LN; R v AW (No. 9) [2017] NSWSC 376.

Application by LN for a Further Direction Concerning Admissions

3. Mr Wilson SC, counsel for LN, sought a further direction with respect to admissions said to have been made by his client (SU186-187, 200-201).

4. I directed the jury in the summing-up concerning the issue of admissions or confessions (SU30-34). The jury was directed that, before a statement could be taken into account as an admission or confession by one of the Accused persons, the jury must be satisfied, firstly, that the particular Accused person made the statement; secondly, that what he or she said was true; and thirdly, that what the particular Accused said implicated that person in some respect in the commission of the crime for which that Accused was standing trial (SU31).

5. Further directions to the jury indicated that the real issues in this trial with respect to LN concerned the second and third issues, namely whether what was said to be an admission was true and whether it implicated her in some respect in the commission of the crime for which she was standing trial (SU32). Some examples were provided to the jury of what the Crown said were admissions by LN in this case (SU32-33).

6. Apart from these directions, I reminded the jury from time to time of submissions made by the Crown and the defence with respect to what the Crown said were admissions made by LN (see, for example, SU59, 131-133, 148, 165-166).

7. At the conclusion of the summing-up, Mr Wilson SC asked the Court to give a further direction with respect to admissions concerning the issue of probative value and the weight which the jury should give to an admission. In this regard, reliance was placed upon Burns v The Queen (1975) 132 CLR 258; [1975] HCA 21 at 261 and EM v The Queen (2007) 232 CLR 67; [2007] HCA 46 at 98-99 [86].

8. I had, of course, given the jury a general direction that issues of weight and reliability of evidence were matters for their consideration (SU12-13).

9. I was not satisfied that any further direction ought be given on this topic in this case. I did not consider that anything said in Burns v The Queen or EM v The Queen required such a direction. I took the view that the second and third steps in the directions given to the jury, namely whether the statement said to have been made by LN was true and implicated her in the crime of murder, were sufficient in the circumstances of this case.

10. The statements relied upon by the Crown as admissions included statements by LN made at different times that she had thoughts of killing Joseph and hated him with some explanation as to why she had those thoughts. The Crown relied, as well, upon recorded conversations between LN and AW which were said to contain admissions made by LN to AW.

11. If the jury was satisfied that an alleged admission was true and implicated LN in the murder of Joseph, there was no real work for a further direction which required the jury to assess what weight ought be given to that evidence in the circumstances of the case. To the extent that submissions made on behalf of LN at trial included an argument that what she said was not her true intention or that such an intention did not attach to the particular act or acts upon which the Crown relied, then those submissions were to be considered principally under the second and third headings relating to the truth of the alleged admissions and whether they implicated LN in the murder of Joseph.

12. Whilst noting that the trial Judge in EM v The Queen did give a direction concerning weight (EM v The Queen at 98-99 [86]), I did not consider that a direction along those lines was required at law or was otherwise required in the circumstances of this trial.

13. Accordingly, I declined to give this further direction to the jury.

Application by LN for a Further Direction Concerning Onus of Proof in the Circumstances of the Trial

14. Senior Counsel for LN sought that I give a more elaborate direction concerning onus of proof in the circumstances of this trial (SU187-188). I had already given a number of directions in this area (SU3-4, 15-16, 24-27, 175-178).

15. Having considered the matter, I foreshadowed the further direction which I proposed to give the jury and Mr Wilson SC noted that he did not wish to say anything further with respect to that formulation (SU201). I gave that further direction to the jury in the following terms (SU213).

“Let me say something to you which adds to what I said to you towards the end of the summing-up about how to approach the application of the onus of proof in a criminal trial where there is circumstantial evidence involved.

As I said to you early in the summing-up, the onus of proof lies on the Crown at all times in the trial. The onus never shifts from the Crown to prove its case on each element beyond reasonable doubt. If an accused person makes an explanation of the cause of death which might be a reasonable possibility, the Crown has to exclude it. There is no onus on the accused, on either accused, to prove anything in a criminal trial, including any possible explanation raised by them in evidence, such as, in this case, that Joey suffered his fatal injuries by tripping in the park.

If that alternative explanation raised by the accused as to the cause of death in this case has not been excluded in your minds as a reasonable possibility, then the Crown has not proved its case beyond reasonable doubt. In that event, as I said to you yesterday, each of the accused would have to be found not guilty of murder and not guilty of manslaughter.”

Application by AW for a Further Direction Concerning the Separate Cases Involving LN and AW

16. Ms Moen sought a further direction concerning the separate cases involving LN and AW (SU189-191, 202-203). Ms Moen set out in writing the further direction which she sought in this regard (MFI60, page 1).

17. I declined to give the direction as sought by Ms Moen. I indicated the further direction which I proposed to give to the jury on this aspect and heard further submissions from Ms Moen in that regard (SU202-203).

18. In approaching this topic, it is necessary to keep in mind the written directions which I gave to the jury concerning AW: R v LN; R v AW (No. 9) (the written directions are annexed to that judgment). The jury were directed as follows in this respect:

“9.   Before you can find AW guilty of murder, the Crown must prove the following matters beyond reasonable doubt:

(a)   there was in existence a joint criminal enterprise (an agreement) between LN and AW which had as its object the commission of assaults upon [Joseph] by the parties to the agreement;

(b)   AW was party to that agreement;

(c)   AW participated in the joint criminal enterprise;

(d)   LN, as a party to the joint criminal enterprise, inflicted harm to [Joseph]:

(i)   by a deliberate act;

(ii)   with the intention (at least) to cause grievous bodily harm;

(iii)   and that this act caused, or substantially contributed to, the death of [Joseph].

(e)   AW contemplated the possible intentional infliction of (at least) grievous bodily harm (really serious bodily injury) by LN upon [Joseph] during the course of the joint criminal enterprise and that, with that awareness, he continued to participate in the agreed criminal enterprise.”

19. The further direction which I gave to the jury (SU212) was as follows:

“So there are a number of issues I want to raise with you. The first relates to the fact that there are separate trials against [LN and AW] and it is an additional topic under the umbrella of that issue that I raised with you a number of times during the summing-up. So what I am about to say is in that line of country.

As I have said to you a number of times, there are separate trials on foot against [LN and AW]. The evidence relied upon by the Crown to prove the guilt of each accused differs. In deciding whether the Crown has proved its case against [AW], and I will just for the moment ask you to look at the elements document again, paragraph 9, in deciding whether the Crown has proved its case against [AW] on the elements in paragraph 9 (a), (b), (c) and (e), you must use evidence that was tendered against [AW] only. So, that is a more specific direction on that topic.”

20. I was satisfied that this was an appropriate direction in the circumstances of this trial.

21. It should be kept in mind that substantial parts of the evidence in the trial were admissible against both LN and AW. In this category was the evidence of FN (LN’s eldest son) who recounted what each of LN and AW did to Joseph in the confined space of the modest country cottage in which the three adults lived with Joseph and Mary (his half-sister) between 14 June and 3 August 2014. This was evidence of assaults upon Joseph by LN and AW, often in company, together with comments made by LN and AW which reflected the thought processes of each of them at relevant times. The evidence of FN was largely uncontested by counsel for LN and AW at the trial. Other evidence admissible against both Accused included that of Senior Constable Nocente concerning a conversation between LN and AW overheard by him in the Centrelink office at Bathurst on 26 August 2014.

22. For the purpose of considering paragraph 9(d) of the written directions, which related solely to LN’s guilt of murder, the jury could have regard to that part of the evidence upon which the Crown relied against LN, much of which was also admissible against AW. However, for the remaining elements of AW’s alleged offence as contained in paragraphs 9(a), (b), (c) and (e), which related solely to AW, the jury was directed to have regard only to evidence that was tendered against AW. In essence, the jury would not get to paragraphs 9(a), (b), (c) or (e) on the murder count against AW unless they were satisfied beyond reasonable doubt of LN’s guilt of murder, being the aspect contained in paragraph 9(d).

23. AW made admissions to police in recorded interviews concerning what he had done to Joseph and what he knew LN had done to the child, and why each of them had acted in that way. AW himself admitted to police that he was aware, whilst Joseph was still alive, of LN’s thoughts of killing Joseph. AW’s awareness of LN’s homicidal thoughts together with his knowledge of her physical attacks upon Joseph (as well as his own assaults upon the child) played a significant part in the Crown case in support of paragraph 9(e) (at [18] above).

24. I was satisfied that the directions given to the jury were appropriate in the circumstances of the trial. They had regard to the separate bodies of evidence admissible against each Accused, together with the very substantial volume of evidence which was admissible against both of them.

Application by AW for Further Directions Concerning the Evidence of Katrina Holland, Alana Benson, FN and SM

25. Ms Moen sought that I remind the jury of features of the evidence of Katrina Holland, Alana Benson, FN and SM (a young person who made observations from the nearby skate park of events in the park at the time of the alleged dog tripping incident) (SU190-194).

26. With respect to these topics, I indicated the Court’s position (SU206) and gave some further directions to the jury (SU221). In adopting this approach, I was conscious that the jury had the entire transcript of evidence in the trial.

Application by AW for a Further Direction Concerning the Use of Evidence of Assaults and Child Abuse Committed by AW

27. Ms Moen sought a further direction concerning this topic (SU190) which was reduced to writing (MFI60, page 2) and was the subject of further submissions (SU203-204).

28. I declined to give the direction in the terms sought by Ms Moen, but I directed the jury in the manner which was foreshadowed to counsel (SU204). I said to the jury (212-213):

“Could I then move to another direction which relates to the way in which you can use the evidence that [AW] assaulted and abused [Joseph]. The evidence of assaults and child abuse committed against [Joseph] by [AW] can only be used by you in the ways I have explained to you a moment ago and in the summing-up as evidence in support of the elements again of paragraph 9 (a), (b), (c) and (e) of the written directions on murder. You cannot reason that, because [AW] committed assaults and child abuse against [Joseph], he is the type of person who will commit criminal activity generally. The evidence is not placed before you for that type of general reasoning. The evidence of [AW’s] assaults and child abuse of [Joseph] is before you for use in the way I have explained with respect to paragraphs 9 (a), (b), (c) and (e) of the written directions on murder.”

29. In the circumstances of this trial, I was satisfied that this was an appropriate direction, to be taken into account with earlier directions which had been given to the jury on this topic.

Application by AW for a Further Direction Concerning Expert Evidence and the Onus of Proof

30. Ms Moen sought a further direction concerning expert evidence and the onus of proof (SU197-198) which she reduced to writing (MFI60, pages 3-4).

31. I declined to give the direction as sought by Ms Moen, but foreshadowed the direction which I would give in this regard and heard further submissions with respect to it (SU204-206).

32. I gave a further direction as follows, which incorporated the first part of what was sought by Ms Moen in MFI60 (SU213-214):

“There is a further direction I want to give to you which expands a little on the issue of expert evidence and the onus of proof. I gave you some directions yesterday on the role of expert evidence in this trial and about the way it may be approached. So let me give you these additional directions.

In the present case there are some areas of conflict between some of the expert evidence relied upon by the Crown and that relied upon by each accused. One area of conflict is the question as to whether [Joseph] could have sustained his fatal injuries in a fall in the park if he was tripped and fell backwards by a rope connecting the two dogs. Where there is a relevant area of conflict between the experts, it is not a case of simply choosing between their evidence as a matter of simple preference. How you approach the resolution of that conflict will depend largely upon which party has the onus of proof in relation to the issue upon which the expert evidence relates.

The expert evidence on the question of whether a fall in the park could have caused [Joseph’s] fatal injuries is based on facts which each expert has been told or on assumptions which he or she has been asked to make. You should analyse the evidence of each of them and determine the extent to which his or her opinion depends upon the facts or assumptions being correct. There is no onus on the accused to prove the facts or assumptions upon which the opinions of Dr Donald and Dr Duflou may be based. That flows from the onus of proof in a criminal trial. If those opinions are based upon facts which you believe might have occurred as a reasonable possibility, or those assumptions might be valid as a reasonable possibility, then it is a matter for you to consider whether the opinion that is based upon those facts or assumptions is correct.”

33. I was satisfied that this further direction, taken with earlier directions, was sufficient in the circumstances of this trial.

Application by AW for the Jury to be Reminded in Greater Detail of the Medical Evidence with Respect to Retinal Damage and Associated Issues

34. Ms Moen requested the Court to remind the jury of the evidence of a number of medical witnesses concerning Joseph’s retinal damage, together with evidence concerning other injuries to Joseph’s body (SU194-196).

35. I indicated that I would remind the jury of the evidence of a number of the medical witnesses concerning these topics (SU206-211). I reminded the jury of this evidence (SU215-221) in a manner which did not give rise to any further application from counsel for either Accused.

36. In reminding the jury of parts of the medical evidence, I was again conscious of the fact that the jury had the entire transcript of evidence given at the trial.

Further Directions to the Jury in Response to Jury Questions

37. Whilst the jury was deliberating, a note was received (MFI63; SU240) which posed the following question:

“Your Honour, we are having trouble defining the difference between ‘assault’, ‘grievous bodily harm’ in both manslaughter and murder. Do we have to prove that [AW] knew [LN] was going to murder [Joseph], not just cause a serious injury?”

38. Having heard counsel with respect to this question (SU240-242), I gave the jury further directions on these topics (SU243-246), which accorded broadly with the submissions of counsel.

39. Thereafter a further note was received from the jury (MFI64; SU246) which stated:

“Your Honour, we are having problems with 9(e) in written direction of murder. Please can you elaborate on the words ‘contemplated’ and ‘grievous bodily harm’. Thank you.”

40. This question related to the written directions concerning AW set out earlier in this judgment (at [18] above).

41. Whilst counsel were addressing with respect to MFI64, a further question was posed by the jury (MFI65; SU248) which stated:

“Your Honour, please can we have examples of grievous bodily harm and assault injury on Joey?”

42. Counsel made submissions concerning the jury questions contained in MFI64 and MFI65 (SU246-251). Thereafter, I gave the jury further directions in response to these questions (SU252-256) which broadly accorded with the submissions of counsel.

43. Having continued their deliberations on Thursday, 13 April 2017, the jury returned after Easter to consider their verdicts which were, in due course, delivered on Tuesday, 18 April 2017, when the jury returned verdicts of guilty of murder with respect to each Accused.

Conclusion

44. This judgment sets out my short reasons for rulings made with respect to applications by counsel for each Accused at the conclusion of the summing-up and further directions which were given as a consequence of those applications and in response to jury questions.

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Decision last updated: 20 October 2017