R v LN; R v AW (No. 6) - [2017] NSWSC 283

Supreme Court

New South Wales

Medium Neutral Citation: R v LN; R v AW (No. 6) [2017] NSWSC 283
Hearing dates: 20 March 2017
Date of orders: 20 March 2017
Decision date: 20 March 2017
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
Crown is confined to the case against AW as opened to the jury on 27 February 2017

Catchwords: CRIMINAL LAW - murder trial - mother and stepfather charged with murder of 3 year old son - issue as to cause of death - objection to Crown asking questions of medical expert on a topic not included in expert report - whether questions on this topic involve Crown changing its case against Accused - Crown confined to case against Accused as opened to the jury - observations concerning desirability of joint expert conference procedure in criminal proceedings
Legislation Cited: Criminal Procedure Act 1986
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005
Cases Cited: Abdallah v R [2016] NSWCCA 34
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 is Joseph's mother and AW his stepfather.
The trial has entered its fourth week. Presently giving evidence is Dr Issabella Brouwer, the forensic pathologist who performed the autopsy upon the child.
In the course of examination-in-chief of Dr Brouwer, objection has been taken by counsel for AW to a line of questioning which, it is said, seeks to advance a different case against him to that previously advanced by the Crown.
The way in which the Crown puts its case against LN and AW was summarised in my judgment R v LN; R v AW (No. 1) [2017] NSWSC 119 at [58]-[59].
Put shortly, (as summarised at [58] of R v LN; R v AW (No. 1)) the Crown puts its case against LN on the basis that she committed a voluntary act on or about 3 August 2014, accompanied by an intention to kill or to inflict grievous bodily harm or with reckless indifference to human life, with that act causing Joseph's death. I pause at this stage to observe that the Crown has opened to…

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 283
Decision Date: 20 March 2017

CaseChat Overview and Summary

In the Supreme Court of Queensland, two defendants, LN and AW, stood trial for the murder of their three-year-old son. The prosecution alleged that the defendants, the boy’s mother and stepfather, had caused his death. The primary legal issue before the court was whether the defendants were guilty of the crime of murder as charged. Another significant issue was the admissibility of questions posed by the Crown to a medical expert outside the scope of the expert's report, particularly whether such questioning constituted a change in the Crown's case against the defendants.

The court addressed the admissibility of the expert testimony, determining that the Crown was confined to the case against the defendants as initially presented to the jury. The court held that questions on topics not covered in the expert's report would only be permissible if they did not involve altering the Crown's case. The court emphasised the importance of adhering to the scope of the expert's report to ensure fairness in the proceedings. Furthermore, the court made observations on the potential benefits of implementing a joint expert conference procedure in criminal trials, suggesting that such a measure could enhance clarity and fairness in expert testimony. Ultimately, the court's decision on these points helped to shape the parameters within which the trial proceeded.

Orders