R v LN; R v AW (No. 4) - [2017] NSWSC 221

Supreme Court

New South Wales

Medium Neutral Citation: R v LN; R v AW (No. 4) [2017] NSWSC 221
Hearing dates: 6 March 2017
Date of orders: 08 March 2017
Decision date: 08 March 2017
Jurisdiction: Common Law
Before: Johnson J
Decision:
Video recording and photographs admitted.

Catchwords: CRIMINAL LAW - murder trial - Accused charged with murder of 3 year old boy - Accused mother and stepfather of child - Crown tender of video and photographs of child before he came to live with Accused - objection to tender of video and photographs - relevant to issues in trial - evidence not excluded under s.137 Evidence Act 1995 - evidence allowed
Legislation Cited: Evidence Act 1995
Cases Cited: BJS v R [2013] NSWCCA 123; 231 A Crim R 537
Papakosmas v R [1999] HCA 37; 196 CLR 297
R v Clark [2001] NSWCCA 494; 123 A Crim R 506
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 standing trial for the murder of a three-year-old boy, Joseph, in August 2014.
The Crown seeks to tender video footage depicting Joseph in what is said to be May 2013, together with six still photographs of Joseph and others, said to be taken between 13 April 2014 and 13 June 2014.
Objection is taken on behalf of each Accused to the tender of the video and photographs.
Joseph was born on 13 April 2011. LN was his mother; AW was his stepfather. Joseph's natural father died in late 2010.
From around the time of his birth in 2011, Joseph lived with his grandmother (LN's mother) at Rockdale. Also living in that household was LN's brother, RH, and other family members. It is the Crown case that Joseph was well cared for, healthy and happy during the period that he lived with his grandmother at Rockdale.
LN informed the family that she wished Joseph to live with her and AW in Oberon. On 13 June 2014, Joseph accompanied LN and AW to Oberon where he lived until 3 August 2014.
It is the Crown case that, during the 51-day period between 13 June 2014 and 3 August 2014, whilst Joseph lived with LN and AW in Oberon, multiple injuries were inflicted upon him by…

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 221
Decision Date: 08 March 2017

CaseChat Overview and Summary

The defendants, LN and AW, stood trial for the murder of a three-year-old boy, who was LN's son and AW's step-son. The case was heard in a court of criminal jurisdiction. The prosecution alleged that the defendants had inflicted fatal injuries upon the child, resulting in his death. The defendants contested the charges, maintaining their innocence throughout the proceedings.

The central legal issues in the case revolved around the admissibility of certain evidence tendered by the Crown. Specifically, the prosecution sought to introduce video footage and photographs depicting the child in a state of severe injury prior to his death. The defendants objected to the admission of this evidence, arguing that it was irrelevant and potentially prejudicial. The court was required to determine whether the evidence was relevant to the issues in the trial and whether it fell within the ambit of section 137 of the Evidence Act 1995, which addresses the exclusion of evidence on the basis of unfair prejudice.

In evaluating the admissibility of the evidence, the court considered the relevance of the photographs and video to the prosecution's case. It concluded that the evidence was pertinent to establishing the timeline and nature of the injuries inflicted on the child. Furthermore, the court found that the potential prejudicial impact of the evidence did not outweigh its probative value. Consequently, the court ruled that the evidence was admissible and allowed it to be presented to the jury. The trial proceeded with the inclusion of the contentious evidence, which ultimately contributed to the defendants' conviction on the charge of murder.

Orders