Supreme Court
New South Wales
Medium Neutral Citation: R v LN; R v AW (No. 2) [2017] NSWSC 153 Hearing dates: 23 February 2017 Date of orders: 24 February 2017 Decision date: 24 February 2017 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Evidence of conversations recorded electronically is admitted.
Catchwords: CRIMINAL LAW - murder trial - objection to parts of conversations recorded by surveillance device or telephone intercept - requirements for prosecution notice under s.142 Criminal Procedure Act 1986 - need to identify electronic evidence to be relied upon by prosecution - objection under s.146 Criminal Procedure Act 1986 overruled - objection to one conversation upon basis of principles in Pavitt v R and under s.137 Evidence Act 1995 - not demonstrated that party to conversation was “agent of the state” - evidence should not be excluded under s.137 - objection overruled - objections to other parts of conversations upon basis that not relevant and under s.137 - objections overruled - evidence of conversations admitted Legislation Cited: Criminal Procedure Act 1986
Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Act 2013
Evidence Act 1995
Interpretation Act 1987Cases Cited: BJS v R [2013] NSWCCA 123; 231 A Crim R 537
Grey v The Queen [2001] HCA 65; 75 ALJR 593
IMM v The Queen [2016] HCA 14; 257 CLR 300
Mallard v The Queen [2005] HCA 68; 224 CLR 125
Papakosmas v R [1999] HCA 37; 196 CLR 297
Pavitt v R [2007] NSWCCA 88; 169 A Crim R 452
R v Burton [2013] NSWCCA 335; 237 A Crim R
R v Clark [2001] NSWCCA 494; 123 A Crim R 506
R v LN; R v AW (No. 1) [2017] NSWSC 119
R v Reardon (No 2) [2004] NSWCCA 197; 60 NSWLR 454
R v Turnbull (No. 25) [2016] NSWSC 831Texts Cited: --- Category: Procedural and other rulings Parties: Regina (Crown)
LN (Accused)
AW (Accused)Representation: Counsel:
Solicitors:
Ms MM Cunneen SC (Crown)
Mr EW Wilson SC (LN)
Ms A Moen (AW)
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 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.
Judgment
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JOHNSON J: The Accused, LN and AW, are to stand trial for the murder in 2014 of Joseph, a three-year-old child. LN was Joseph's mother and AW his stepfather.
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The nature of the allegations against the Accused was summarised, by reference to the Crown Case Statement, in R v LN; R v AW (No. 1) [2017] NSWSC 119.
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The Crown seeks…
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- Case
- [2017] NSWSC 153
- Decision Date
CaseChat Overview and Summary
The court examined the necessity for the prosecution to identify the electronic evidence in advance, as mandated by the Criminal Procedure Act. It found that the prosecution had sufficiently notified the defendants of the evidence they intended to use. Regarding the objection under the Evidence Act, the court concluded that it had not been demonstrated that the party to the conversation was an "agent of the state." Consequently, the court ruled that the evidence should not be excluded under section 137 of the Evidence Act. The court also dismissed objections to other parts of the conversations, determining that they were relevant and did not fall under the exclusionary provisions of the Evidence Act. Ultimately, the objections were overruled, and the evidence from the conversations was admitted.
The final orders of the court were that the objections to the admissibility of the recorded conversations were dismissed, and the evidence was permitted for use in the trial. This decision allowed the prosecution to rely on the recorded conversations as part of their case against the defendants.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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