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

1. 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.

2. 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.

3. The Crown seeks to tender at the trial evidence of certain conversations in August and September 2014 which were recorded by use of surveillance devices or telephone intercepts. The conversations were recorded lawfully under warrants obtained by investigating police.

4. Objection is taken by the Accused to the tender of parts of these conversations on a number of bases.

Factual Background

5. Before moving to the particular objections, it is appropriate to say something of the relevant background to this judgment.

6. Joseph died in August 2014. Each Accused was interviewed by police and participated in recorded walk-through interviews on a number of days in August and September 2014. Speaking generally, each Accused told investigating police about their interaction with Joseph between 13 June and 3 August 2014, and what had allegedly occurred to the child on 3 August 2014.

7. Put shortly, the Crown alleges that the child sustained fatal injuries inflicted by LN on or about 3 August 2014. It is the defence case that the fatal injuries were sustained when the child had an accidental fall on 3 August 2014 in a park opposite the Oberon house where they lived. The Crown says that Joseph was not in the park at all on that occasion but, even if he was, that any injury resulting from a fall was not the cause of death.

8. The conversations recorded under warrant, which the Crown seeks to tender, took place between 9 August 2014 and 12 September 2014. The conversations involve the Accused persons speaking to each other or one of the Accused speaking to a third party, a relative.

9. The Crown seeks to tender these various recorded conversations upon the basis that one or other of the Accused made statements which may constitute an express or implied admission or otherwise demonstrate consciousness of guilt.

10. In circumstances where both of the Accused persons were being spoken to (with their consent) by police over the same period, the Crown says that these recorded conversations form part of the range of statements or comments being made by each Accused in August and September 2014 concerning what had happened to Joseph, and what led to his death and that this evidence is, accordingly, relevant and probative evidence.

Role of Surveillance Device and Telephone Intercept Evidence

11. Before turning to the particular areas of objection, it is appropriate to say something about the manner in which surveillance device and telephone intercept evidence has come forth in these proceedings.

12. There was in this case, perhaps unusually, a four-day committal proceeding, which took place at the Bathurst Local Court between 15 and 18 February 2016. Counsel now appearing for each Accused at trial also appeared at the committal proceedings.

13. It was clear that the Crown intended to rely upon some of the evidence obtained by use of surveillance device or telephone intercept. The Crown Case Statement prepared on 5 March 2016 (part of Exhibit PTD) adverted to this (at paragraph 63), with reference being made in summary form to comments said to have been made by each Accused in recorded conversations on 13 and 16 August and on 4, 5, 6, 14 and on 15 September 2014. Accordingly, I accept that the substance of what the Crown seeks to rely upon had been identified to the legal representatives for the Accused, at least in summary form, at that time.

14. There is evidence that investigating police provided a USB stick (or sticks) containing recordings of conversations to the Orange Legal Aid Office in December 2014 (Exhibit PTG).

15. On 3 June 2016, both Accused were arraigned in this Court and pleaded not guilty to the charge of murder. A trial date was fixed for 20 February 2017, and orders were made for the filing and service of prosecution and defence notices for the purpose of ss.142, 143 and 144 Criminal Procedure Act 1986.

16. The notice of prosecution case was filed and served on 11 October 2016. It made no express reference to the Crown’s intention to rely upon electronic evidence, although the attached Crown Case Statement (which I have mentioned) did refer to evidence of this type. Certainly the s.142 notice did not identify any existing transcripts of recorded conversations which were to be made available to the defence.

Requirements Under s.142 Criminal Procedure Act 1986

17. I pause at this stage to observe that, in my view, a s.142 notice ought refer expressly to evidence of this type. Section 142(1)(d) requires the prosecution notice to contain (or at least identify) a copy of each “document”, evidence of the contents of which the prosecution proposes to adduce at the trial. Section 142(1)(i) requires the notice to contain (or at least identify) a copy of any “document or other thing” provided by law enforcement officers to the prosecutor.

18. Section 149A(1) Criminal Procedure Act 1986 provides that a copy of a proposed exhibit, document or thing is not required to be included in a notice if it is impossible or impracticable to provide a copy, but s.149A(2) requires a framework to be established for inspection of items of that sort.

19. I note that the word "document" is not defined in the Criminal Procedure Act 1986. It is defined in s.21 Interpretation Act 1987 as meaning "any record of information" and includes, amongst other things, "anything from which sounds may be reproduced with or without the aid of anything else".

20. In my view, s.142 requires the prosecution to identify and make available recordings and transcripts of electronic evidence to be relied upon by the prosecution. At the least, there ought to be a clear statement in the notice of an intention to rely upon evidence of this type and of the steps being taken by the prosecution to allow for meaningful disclosure by the prosecution of this material and its preparation for trial.

21. I am reinforced in this conclusion by s.143(2)(b) which relates to the defence response to the prosecution notice. This provision allows the Court to make a discretionary order that the defence indicate whether evidence obtained "by means of surveillance" will require all prosecution witnesses to be called.

22. In the Second Reading Speech for the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Act 2013, the Attorney General said with respect to s.143(2)(b) (Hansard, Legislative Assembly, 13 March 2013):

“Proposed subsection 2(b), for example, requires the defence to confirm whether the prosecution is required to call witnesses to corroborate any surveillance on which it is intended to rely. Surveillance evidence within the meaning of the subsection is intended to have a broad meaning. It can include traditional surveillance evidence such as physical observations of suspects recorded in logs by the police, as well as that obtained under warrant, such as evidence resulting from the placing of a listening device in a particular location. This evidence may not be relevant in some cases and allowing the Court to make an order means that the Judge can tailor its terms to fit the type of evidence in question.”

23. In addition, s.143(2)(d) allows the Court to make a discretionary order that, if the prosecutor disclosed an intention to tender at the trial “any transcript", the defence response must indicate whether the Accused person accepts the transcript as being accurate and, if not, in what respect the transcript is disputed.

24. These provisions confirm the view that the s.142 prosecution notice and the s.143 defence response are intended to assist identification of electronic evidence to be relied upon by the prosecution, and areas of dispute to be raised by the defence.

25. In this case, the defence notices were filed and served in November 2016. The proceedings were mentioned before me as the trial Judge on 8 November 2016, and I raised with the Crown what steps were being taken with respect to telephone intercept and surveillance device evidence (T3-4, 8 November 2016). Accordingly, it was clear that this issue needed to be progressed.

26. The commencement date of the trial was put back by a week to 27 February 2017, with various pre-trial issues being argued and determined this week. In this context, the Court was informed that transcripts of extracts from the various conversations had been furnished by the Crown recently with the need for defence counsel to listen to the full conversations for the purpose of considering whether more than that selected by the Crown should be tendered if the evidence was to be admitted.

27. I note that emails were sent to the Crown by a solicitor for one of the Accused on 24 and 27 January 2017 and on 1 February 2017 (Exhibit PT1) asking that the Crown furnish the transcripts which were proposed to be tendered.

28. Yesterday, on what was intended originally to be the fourth day of the trial, argument proceeded before me concerning objections to parts of the electronic evidence to be relied upon by the Crown.

29. What has happened in this trial is not uncommon. In my capacity as Criminal List Judge, I am aware that late provision by the Crown (both State and Commonwealth) of telephone intercept and surveillance device evidence has, on occasions, delayed trials and, in some cases, caused the trial to be adjourned to a later date.

30. I make these observations against the background of s.134 Criminal Procedure Act 1986, which states that the purpose of the case management provisions, including ss.142, 143 and 144, is to reduce delays in proceedings on indictment by requiring certain pre-trial disclosure by the prosecution and defence and enabling the Court to undertake case management of the proceedings.

31. I note, as well, the existence of s.146(1) Criminal Procedure Act 1986, which provides that the Court may refuse to admit evidence in proceedings that is sought to be adduced by a party who failed to disclose the evidence to the other party in accordance with requirements for pre-trial disclosure imposed by provisions, including ss.142, 143 and 144. An argument of this type was referred to in R v Turnbull (No. 25) [2016] NSWSC 831 at [16] and [21].

32. I observe, as well, that the prosecution and defence disclosure obligations are ongoing: s.147 Criminal Procedure Act 1986.

33. It should be observed as well that the statutory disclosure regime in the Criminal Procedure Act 1986 is additional to the common law prosecution duty of disclosure considered in cases such as Grey v The Queen [2001] HCA 65; 75 ALJR 593; R v Reardon (No 2) [2004] NSWCCA 197; 60 NSWLR 454 and Mallard v The Queen [2005] HCA 68; 224 CLR 125 at 133 [17].

The s.146 Objection

34. I return to the present case. Senior Counsel for LN submitted that the Court should decline to admit so much of the electronic evidence which has been objected to by the defence under s.146(1) Criminal Procedure Act 1986.

35. On the view I have taken, I do not think that the Crown s.142 notice complied strictly with the statutory requirements with respect to electronic evidence. However, I am satisfied that each Accused was aware of the substance of what was to be relied upon by the Crown, so that this aspect has not taken the Accused by surprise. However, the late provision of the transcripts has given rise to other late steps being taken, including the need for the Court to determine these objections in the shadow of the commencement date of the trial.

36. Having considered the arguments which have been advanced, however, I decline to exclude under s.146(1) the portions of the transcripts to which objection has been taken.

37. I move now to the particular areas of objection to the material contained in a folder (Exhibit PTF).

Objection to Part of a Telephone Conversation Between AW and LN at 3.21 pm on 15 September 2014

38. I will consider, firstly, the objection by Senior Counsel for LN to the tender of a conversation recorded by telephone intercept between LN and AW which commenced at 15:21 on 15 September 2014. At that time, neither of the Accused had been charged with respect to the death of Joseph.

39. In the course of that conversation, the following was said as between AW and LN, who was, at that time, in the Panorama Clinic:

“AW: I have a hard question to ask ya.

LN: Ask me anything.

AW: Did you do it?

LN: Yeah, I did it. I did everything, but you know what. No matter how much I tell them or what I tell them, they still don't believe me. So no matter what, I am still looking at gaol time. You know what, I don't care.

AW: Yeah, but what you said the other day, I was hoping that...going away for a long time too, so...

LN: You're not the only one that's copping this shit. I am too.

AW: I just want the truth out there. I told Joel everything, that's why I have criminal charges pending but, at the end of the day, I didn't kill [Joey].

LN: Because they don't believe that he was in the park, yet there's fucking witnesses saying that he was there. Do you see what I'm saying? They are twisting everything and now they are trying to drive a wedge between you and me.”

40. The reference to "Joel" by AW is a reference to the officer-in-charge of the case, Detective Sergeant Joel Fawkner.

41. Before moving to the specific argument, I should mention two other features. Telephone conversations recorded by the police included one on 13 August 2014 between AW and his father. In that conversation, AW suggested to his father that the officer-in-charge had suggested to him that he should ask LN the question as to whether she had killed the child in a direct way.

42. I note as well that, at 15:48 on 15 September 2014, Detective Sergeant Fawkner rang AW to tell him that he had been informed that LN was leaving the Panorama Clinic. In the course of that conversation, AW told Detective Sergeant Fawkner that he had asked LN if she had done it and she had said that she did.

The Pavitt v R Objection

43. In written submissions (MFI5), Mr Wilson SC submitted that this evidence should be excluded, relying upon the decision of the Court of Criminal Appeal in Pavitt v R [2007] NSWCCA 88; 169 A Crim R 452. He submitted that, in having the conversation with LN on 15 September 2014 at 15:21, AW was, effectively, acting as an “agent of the state” in asking questions of LN, so that, according to the submission, the evidence of the conversation should be excluded in accordance with the decision in Pavitt v R or, alternatively, under s.137 Evidence Act 1995 upon the basis that the probative value of the evidence is outweighed by the danger of unfair prejudice to LN.

44. The Crown submitted that it should not be found that AW was an “agent of the state” at the time of the conversation, so that the principles in Pavitt v R were not engaged. The Crown submitted further that the evidence should not be excluded under s.137.

45. Unlike Pavitt v R and other decisions where similar arguments have been run, this is not a case where a police officer asked a person to make a pretext call to a suspect, so that the response of the person to the question could be recorded. There is no evidence that, at the time that AW spoke to LN at 15:21 on 15 September 2014, he (AW) had any knowledge that his conversation was to be recorded. That is in clear distinction to other cases where an arrangement is put in place for such an event to actually occur.

46. In this case, police had interviewed both LN and AW several times over a number of weeks, with each of the Accused consenting to that process. It is the case that there is a suggestion made by AW to his father, in a conversation about one month before the relevant call was made, that the police officer had been encouraging him to ask LN what had happened. There is no other evidence before me on that aspect.

47. The appropriate conclusion, in my view, is that, whatever may have been said, AW had formed a belief that he should ask that question at some point, but he was not directly urged to do so by the police officer, let alone that he was asked to do it on an occasion when it was expected that the relevant conversation would be recorded.

48. In these circumstances, it was argued by Mr Wilson SC that the police officer had effectively put the idea into AW's head, with AW, a month later, deciding to ask LN the question, but not that the officer “deliberately provoked it” (T122.48-50, 23 February 2017).

49. I have considered this aspect of the objection and have kept in mind the principles contained in the joint judgment of McColl JA and Latham J in Pavitt v R at 487-488 [70].

50. By reference to the factors identified in paragraph [70] of Pavitt v R, I note that the first is that the underlying consideration in the admissibility of covertly recorded conversations is to look at the Accused's freedom to speak to the police and the extent to which that freedom had been impugned. In this case, both Accused had spoken to police frequently and sometimes at their own suggestion about these matters. This is not a case where LN had declined to speak to police at all. In fact, there were frequent discussions, as I have said.

51. I move past paragraph (b) in [70] as I am not satisfied that any freedom to choose was impugned.

52. I move directly to paragraph (d) in [70]. The Court should consider whether the Accused, who is alleged to have made the admission, had previously indicated that he or she should refuse to speak to the police. As I have said, this is not the case. LN had been speaking to the police regularly and, at times, at her own suggestion.

43. As to paragraph (e) in [70], it is said that the right to silence will only be infringed where it was the informer (in this case AW) who caused the Accused (in this case LN) to make the statement, and where AW was acting as an “agent of the state” at the time LN made the statement. There are two distinct inquiries required. Firstly, as a threshold question, was the evidence obtained by an “agent of the state”. Secondly, was the evidence elicited?

44. I am not satisfied in this case that, at the time this call was made, AW was acting as an “agent of the state”. The fact that there may have been earlier discussion a month before with the police officer is, in my view, a tenuous basis to suggest that what happened on 5 September 2014 involved AW being deployed as an “agent of the state”.

45. In those circumstances, it is not necessary to consider the second aspect under paragraph (e) in [70].

46. I note, as well, what is said in paragraph (f) in [70] - a person is a state agent if the exchange between the Accused and the informer would not have taken place, in the form or manner in which it did take place, but for the intervention of the state or its agents. I am simply not satisfied in this case that that factor is made out. This is one of a long line of communications between the two Accused with each other. The fact that AW may have, at this time, thought he would do what had been the subject of some general discussion with the police officer a month before, did not render him an “agent of the state”.

47. I do not think any of the other factors identified in Pavitt v R at [70] are engaged. I observe that the fact that the conversation was covertly recorded is not, of itself, unfair or improper, at least where the recording was lawful ([70](i)). In this case the recording was lawful and, as I have said, there is no evidence that AW knew that the conversation was being recorded at the time.

48. I have kept in mind that there is evidence that, soon after this call, the police officer rang AW to tell him that LN was to leave the Panorama Clinic and AW reported to Detective Sergeant Fawkner what had been said in the conversation with LN. I do not think that elevates the position to one where AW was, on the evidence, an “agent of the state” at the relevant time. Accordingly, in my view, the principles in Pavitt v R have no application here.

49. AW spoke to LN as part of many conversations taking place between them over a period of weeks which, unbeknownst to both of them, were being recorded. I decline to exclude that evidence upon that basis.

Objection Under s.137 Evidence Act 1995

60. I move to the s.137 objection. I am satisfied that the evidence of this conversation is relevant, as a form of admission allegedly made by LN to AW with respect to the death of the child. I have kept in mind that this was one of a series of conversations over a period of time involving AW and LN, including police interviews and conversations with third parties.

61. In my view, a complete account of what was said by each Accused concerning what had happened to the child bears directly upon the facts in issue in the trial.

62. Section 137 Evidence Act 1995 is expressed in terms of an evaluative judgment which, in specified circumstances, mandates exclusion: IMM v The Queen [2016] HCA 14; 257 CLR 300 at 306 [16]. Section 137 requires the “probative value” of the evidence to be weighed against the danger of unfair prejudice to the Accused. This requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue: IMM v The Queen at 314 [47].

63. The danger of “unfair prejudice” in s.137 directs attention to the risk that evidence may be misused in some unfair way by the tribunal of fact (in this case a jury) so that the jury may not comply with judicial directions as to its use: Papakosmas v R [1999] HCA 37; 196 CLR 297 at 325 [91]; R v Clark [2001] NSWCCA 494; 123 A Crim R 506 at 582-584 [163]-[165]. There must be a risk that the evidence will damage the defence case in some unacceptable way, such as provoking some irrational, emotional or illogical response or by giving the evidence more weight than it truly deserves: BJS v R [2013] NSWCCA 123; 231 A Crim R 537 at 549-550 [51].

64. The existence of competing inferences (or alternative interpretations), available to be drawn from the proposed prosecution evidence, plays no part in the assessment of probative value for the purpose of s.137: R v Burton [2013] NSWCCA 335; 237 A Crim R 238-280 [196].

65. I have kept in mind that, over the time of these conversations and at the time of the conversation on 15 September 2014, both Accused were under pressure which affected their emotional state. LN in particular was under a degree of pressure and she was, at the time of this conversation, about to be discharged from the Panorama Clinic.

66. However, it is appropriate, in my view, that the jury have a complete picture as to what was said by each of the Accused concerning what had happened to Joseph and, in particular, what act or events led to his death.

67. I have considered the argument with respect to suggested prejudicial effect concerning this piece of evidence. I am not satisfied that the probative value of this evidence is outweighed by the danger of unfair prejudice to LN, and I decline to exclude it under s.137.

68. This conversation will be admitted into evidence at the trial.

Other Areas of Objection

69. I turn to other discrete areas of objection which may be dealt with more briefly.

Conversation at 7.29 am on 11 August 2014 Between LN and FN

70. With respect to a conversation which took place commencing at 7.29 am on 11 August 2014 between LN and her adult son FN, objection is taken on behalf of the Accused upon a number of bases including s.137.

71. The tendered conversation involves the Accused LN discussing with her son whether, if a person had fractured vertebrae close to the base of their spine, the person would still be able to walk. In support of the objection, it is argued that this is a conversation between two lay persons on the topic and that there is no evidence that fractured vertebrae appear to be involved in this case. It is submitted that the probative value of this evidence is little and that it should not be admitted.

72. I bear in mind that this conversation is taking place five days after Joseph had died at the Westmead Children's Hospital. It is necessary to keep in mind that there were a number of conversations occurring with each of the Accused and police.

73. The Crown submits that the suggested relevance of this conversation is that it reveals thoughts in the mind of LN, expressed to her son, about the capacity of someone who had suffered an injury of that type to walk. It is said that this may bear upon the question of whether any injury said to have been sustained by Joseph in the park on 3 August 2014 may be able to explain his death.

74. I accept that this reference is indirect, in the context of this case. However, in my view, this reveals the thought processes of LN at an important time during the course of the investigation. I am satisfied that this conversation has probative value. I am not satisfied that its probative value is outweighed by any prejudicial effect, for the purpose of s.137.

75. That conversation will be admitted into evidence.

Conversation at 2.09 pm on 13 August 2014 Between AW and his Father

76. The next area which drew objection involved parts of a telephone intercept conversation commencing at 14.09 on 13 August 2014 between AW and his father. The Crown seeks to rely on parts only of this conversation.

77. This evidence, if admitted, would only be admissible against AW. The Crown says it reveals a degree of consciousness of guilt.

78. There is discussion (at pages 4 and 5 of the transcript in Exhibit PTF), with AW telling his father that there are eyewitnesses in the park who are allegedly saying what happened (to the child). It seems to me that this aspect, which is significant to the trial, namely, what happened in the park on 3 August 2014, is relevant to issues in the trial. The exposure of AW's thought processes on that issue as at the time of this conversation on 13 August 2014, is relevant to issues in the trial.

79. I am satisfied that pages 4 to 5 of this transcript are relevant, and I am not persuaded it ought be excluded under s.137.

80. I move to pages 9 to 11 of the same transcript. Once again, there is discussion between AW and his father about the possibility that AW may be charged. There is reference, once again (at page 10), to the fact that one of the eyewitnesses in the park has told the police what had happened. On the same basis as that applied to pages 4 and 5 of this transcript, I am satisfied that pages 9 to 11 should be admitted.

81. Next, the Crown tenders page 36 to part way down page 40 of this 72 page transcript. At this point, AW is speaking to his father and is, on the face of it, indicating that he had (with respect to Joseph) "smacked him hard and stuff", but as he said to the police, "It wasn't life threatening".

82. This material is capable of constituting admissions of acts which AW carried out towards Joseph over time. There are further references to conduct of that type on page 37, including the placing of ice on the child’s head and of pushing him. It is agreed that parts will be omitted at page 38.

83. There is a reference at page 39 in which AW says that he did not see what happened when LN carried Joseph into the house after the park incident on 3 August 2014. I accept that this is relevant to issues in the trial. Although aspects of what is said at that point are somewhat indirect, it does bear in my view, upon the facts in issue in the trial so as to render it relevant, and I am not persuaded that it ought be excluded under s.137.

Conversation at 3.37 pm on 13 August 2014 Between LN and AW

84. The next document to which objection is taken is a listening device transcript of a conversation involving LN and AW at 15:37 on 13 August 2014. This transcript apparently records what was happening initially in the presence of Detective Sergeant Fawkner. It is said that Detective Sergeant Fawkner left the room and soon after, LN is said to have whispered, "I did it and I want to die". Then a little later, LN says to AW, "I don't want to talk about it no more, I just want to be arrested. I don't care”.

85. The Crown tenders this as a form of admission by LN with respect to the crime charged.

86. Objection is taken by the Accused upon a number of bases - that it is necessary to understand what was said in context, that this was a week after the child had died, there had been many discussions about this, and there had been police interviews and that both Accused had indicated to police that they had used a measure of violence against the child over the period between mid June 2014 and 3 August 2014, although both denied killing the child.

87. It was argued that this comment is capable of being understood as indicating a state of fatigue after many questions had been asked of LN by people concerning what had happened to Joseph. It is argued that it may be considered ambiguous in that it may relate to other acts of violence towards the child, but not the critical alleged act or acts of violence which are said to have caused death.

88. Firstly, I accept that the evidence is relevant and admissible as a prima facie admission by the Accused LN. What one makes of it, viewed in context of the discussion on that day, and viewed in the context of many discussions over many days which have been recorded and will be before the jury will, in my view, be a matter for the jury to determine by reference to all the evidence. The arguments which have been advanced in opposition to the tender of this evidence may well be deployed in the presence of the jury to indicate that this is not an admission to murder. However, in my view, these are issues of fact for the jury to consider. Accordingly, I will admit this conversation.

Conversation at 6.02 pm on 4 September 2014 Between AW, LN and FN

89. The next area to which objection is made is the part of the conversation commencing at 18:02 on 4 September 2014 between AW, LN and FN (LN's son). What the Crown seeks to tender lies at the end of the conversation where the following is recorded:

“AW: You have to understand what these detectives - that's their full-time job, they live and breathe it, they won't give up until they find an answer.

LN: But if Joel [Detective Sergeant Joel Fawkner] gets sick and tired of this shit that's going around and around in circles, then he is going to hand this case to Homicide, and then we are fucked. We have no leg to stand on.

AW: They are Homicide as well.”

90. The Crown submits that this is a form of admission or evidence of consciousness of guilt on the part of LN, in particular, and it is tendered on that basis. Mr Wilson SC, for LN, objected upon the basis that there is a level of ambiguity with this, that what is happening at that time with both LN and AW was concern about what would happen to their daughter, who was younger than Joseph. It is argued that it is not truly evidence of consciousness of guilt, and reliance is placed once again on s.137.

91. I accept that it is necessary to consider the tender of this piece of evidence in context. The context, as I have now said on a number of occasions, was a prolonged period of investigation and interviews and discussion with police officers about what had happened to this little boy. It may well be that this part of the conversation is able to be construed in a way that detaches it from evidence that bears upon the question of who killed Joseph and how. At the same time, it does seem to me that it reflects what was in the mind of LN at this time, and as such, has probative value. Its prejudicial effect, in my view, to the extent that there is any, does not outweigh its probative value. I decline to exclude it under s.137. That evidence will be admitted.

Conversation at 7.24 am on 5 September 2014 Between AW and LN

92. The final evidence to which objection is taken was a conversation at 7.24 am on 5 September 2014 between AW and LN recorded by a listening device. In the course of this conversation at one point, LN says:

“LN: Yep, I'm sorry [AW].

AW: Hey, what are you sorry for? You've done nothing wrong.

LN: I've stuffed everything.

AW: Hey, stop that, all right. You haven't.”

93. At this point LN was crying. AW says:

“AW: All right. You haven't, all right. Get that shit out of your fucking head, all right. It's a bit like what you said last night. Don't start talking crap or I'll get angry at you, all right, because you haven't.”

94. And there was some discussion then with LN suggesting that AW should have left with their little daughter.

95. Objection was taken to this on the basis that it is said to be ambiguous as to what it is that LN is apologising for. It may not relate to anything that she did. It may just relate to the state of exasperation which existed at that time, and the status and future with respect to their daughter. The Crown submitted that this is capable of being evidence of consciousness of guilt on the part of LN.

96. This conversation is less direct than some others in so far as it is said to be evidence of consciousness of guilt. There are competing arguments that may be advanced as to what it was that LN was apologising to AW for. However, as I have already said in this judgment, it seems to me that what was said by the Accused (in this case LN) over the period of weeks that followed the death of Joseph, and which may bear on that issue, is prima facie relevant.

97. This piece of evidence is open to a construction that LN is apologising to AW for what has happened to Joseph. The Crown says that she is apologising, in effect, for her part in the death of Joseph. Whether that is an appropriate construction to place on this will, in my view, be a matter for the jury. The jury will have all the evidence which bears on that topic and can make of it what they will, considering it in light of all of the other evidence, as to what LN said at different times on the topic.

98. The way in which the Crown seeks to prove that LN murdered Joseph involves, in part, a circumstantial case. It seems to me that this piece of evidence is capable of shedding light on that question, although the weight to be given to it ultimately will be a matter for the jury. I am satisfied that it is relevant. I am not satisfied that any prejudicial effect it has (if any) outweighs its probative value, so I propose to allow it.

Conclusion

99. For the various reasons set out in this judgment, I allow the Crown to adduce the evidence to which objection was taken. I note that a number of edits will be carried out to transcripts and some further material will be included in some of these transcripts to give greater context to what was said. That will happen, as I understand it, with the agreement of the parties.

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Decision last updated: 19 April 2017