R v LN; R v AW (No. 3) - [2017] NSWSC 154

Supreme Court

New South Wales

Medium Neutral Citation: R v LN; R v AW (No. 3) [2017] NSWSC 154
Hearing dates: 24 February 2017
Date of orders: 24 February 2017
Decision date: 24 February 2017
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
Evidence of conversation allowed.

Catchwords: CRIMINAL LAW - murder trial - objection to part of conversation recorded during walkthrough interview between police and Accused LN - objection on ground of relevance and under s.137 Evidence Act 1995 - evidence relevant - probative value not outweighed by any prejudicial effect - evidence allowed
Legislation Cited: Evidence Act 1995
Cases Cited: R v LN; R v AW (No. 1) [2017] NSWSC 119
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: In the concluding phases of discussions between counsel concerning appropriate editing of lengthy interviews which have taken place between police and one or other of the Accused over many weeks, there is a single issue for consideration and determination by the Court. It is of course, highly desirable that the parties embark upon this process of discussion to narrow what is to be tendered, and to avoid the need for a Court decision unless necessary. The process undertaken in this trial, of which this is an example, is a highly satisfactory one.
The issue that arises for consideration by the Court is this. On 13 August 2014, police conducted a walk-through interview where the Accused LN accompanied police to the park over the road from LN's house in Oberon where it is said that an incident occurred on 3 August 2014 involving the child Joseph, and some dogs. To understand this aspect, I refer to my outline of the Crown case against each Accused in R v LN; R v AW (No. 1) [2017] NSWSC 119.
In the course of the recorded conversation in the park, the following was said:

Detective Sergeant Fawkner: "All right. When you said that you wanted to tell me things about your thoughts of killing [Joseph], how did you think about that?”.

LN: “I, at first, I didn't think about it. It was the chatter that was making me angry”.

Detective Sergeant Fawkner: “Yep, but in what, how would you do it?”.

LN: “Like, what do you mean?”

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.

Keep reading for free

Create a free CaseChat account to read R v LN; R v AW (No. 3) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NSWSC 154
Decision Date: 24 February 2017

CaseChat Overview and Summary

The case involved two accused, LN and AW, who were on trial for the murder of an individual. The prosecution objected to a portion of a conversation recorded during a walkthrough interview between the police and the accused LN. The objection was based on the grounds of relevance and section 137 of the Evidence Act 1995. The primary legal issues for the court to determine were whether the recorded conversation was relevant to the case and whether its probative value outweighed any prejudicial effect it may have on the trial. The court examined the relevance of the recorded conversation to the case and whether it had sufficient probative value to warrant its admission as evidence. The court held that the conversation was relevant and that its probative value was not outweighed by any prejudicial effect it might have on the trial. Consequently, the court allowed the evidence to be presented in the trial. The court's decision was based on a thorough examination of the relevant provisions of the Evidence Act 1995 and the circumstances of the case. The court concluded that the evidence was admissible and that it would be up to the jury to determine its weight in the trial. The final orders of the court were that the objected portion of the recorded conversation would be allowed as evidence in the trial.

Orders