R v LN; R v AW (No. 2) - [2017] NSWSC 153

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 1987
Cases 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 831
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 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

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.
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.
The Crown seeks…

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 153
Decision Date: 24 February 2017

CaseChat Overview and Summary

The defendants, LN and AW, faced charges of murder and were subject to a criminal trial. A central issue in the case was the admissibility of evidence obtained through surveillance devices and telephone intercepts. Specifically, the defendants objected to parts of the recorded conversations, arguing that the prosecution had not adequately notified them of the electronic evidence they intended to rely upon, as required by the Criminal Procedure Act 1986. Additionally, the defendants contended that some of the conversations should be excluded under the Evidence Act 1995, asserting that one of the parties to the conversation was an "agent of the state."

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