R v LN; R v AW (No. 5) - [2017] NSWSC 263

Supreme Court

New South Wales

Medium Neutral Citation: R v LN; R v AW (No. 5) [2017] NSWSC 263
Hearing dates: 16 March 2017
Date of orders: 16 March 2017
Decision date: 16 March 2017
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
Evidence of Senior Constable Christopher Nocente allowed.

Catchwords: CRIMINAL LAW - murder trial - Accused charged with murder of 3 year old boy - mother and stepfather of child - Crown seeks to call off duty police officer to give evidence of conversation between Accused overheard in Centrelink office - defence objection - held evidence relevant and ought not be excluded under s.137 Evidence Act 1995 - 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: The Accused, LN and AW, are standing trial for the murder in 2014 of Joseph, a three-year-old child. LN was Joseph's mother, and AW his stepfather.
The Crown case is now well advanced and the jury have heard a considerable body of evidence. This evidence includes several recorded interviews between police and each Accused over a period from 3 August 2014 to about mid-September 2014. In addition, there has been surveillance device and telephone intercept evidence of conversations involving one or other or both of the Accused in that period.
The background to the present trial may be found in my first judgment, R v LN; R v AW (No. 1) [2017] NSWSC 119. It is the Crown case that LN murdered Joseph by inflicting injuries directly to him with an intent to kill or to inflict grievous bodily harm. The Crown case against AW involves the alleged existence of a joint criminal enterprise between LN and AW to assault Joseph over a period of time between 13 June 2014 and 3 August 2014.
The evidence (expressed very generally) involves repeated statements by each Accused that Joseph tripped on a rope between two dogs in a park at Oberon in the early afternoon of Sunday, 3 August 2014. It is the defence case (once again put broadly) that the fatal injuries sustained by Joseph were caused in that incident.
There is a substantial issue in the trial as to whether…

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 263
Decision Date: 16 March 2017

CaseChat Overview and Summary

The case before the court involved two defendants, LN and AW, who were charged with the murder of a three-year-old boy, the son of LN and the step-father of AW. The trial took place in a court of criminal jurisdiction. The Crown sought to introduce evidence from an off-duty police officer who had overheard a conversation between the accused while they were in a Centrelink office. The defence objected to the admission of this evidence, arguing that it was inadmissible under section 137 of the Evidence Act 1995.

The legal issue before the court was whether the conversation overheard by the police officer was relevant and admissible as evidence under the law. The court had to consider whether the conversation was an exception to the hearsay rule and whether it was relevant to the case. The court also had to determine if the evidence should be excluded under section 137 of the Evidence Act 1995, which provides that evidence obtained in an unlawful manner is not admissible.

After considering the arguments of both parties, the court found that the conversation overheard by the police officer was relevant to the case and was an exception to the hearsay rule. The court held that the evidence was admissible and should not be excluded under section 137 of the Evidence Act 1995. The court found that the police officer had not obtained the evidence in an unlawful manner and that the evidence was relevant to the case. The court allowed the evidence to be admitted.

The court's decision allowed the Crown to present the evidence of the overheard conversation to the jury. This evidence may have been crucial in establishing the guilt or innocence of the accused. The court's decision to admit the evidence was based on a careful consideration of the law and the facts of the case. The outcome of the trial may have been affected by the admission of this evidence.

Orders