R v LN; R v AW (No. 7) - [2017] NSWSC 296

Supreme Court

New South Wales

Medium Neutral Citation: R v LN; R v AW (No. 7) [2017] NSWSC 296
Hearing dates: 22 March 2017
Date of orders: 22 March 2017
Decision date: 22 March 2017
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
I allow the evidence given by Dr Rodriguez on the voir dire to be adduced by the Crown.

Catchwords: CRIMINAL LAW - murder trial - expert evidence sought to be adduced by Crown - not subject of supplementary expert report - evidence given on voir dire - whether evidence should be excluded - evidence allowed
Legislation Cited: Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: R v LN; R v AW (No. 6) [2017] NSWSC 283
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: On Monday, 20 March 2017, I delivered a judgment which outlined the unsatisfactory history of this trial with respect to expert evidence: R v LN; R v AW (No. 6) [2017] NSWSC 283.
As that judgment makes clear, the Crown accepts that it is confined in the way in which it puts its case against AW to the case which was opened to the jury. I will ensure that the Crown is so confined for the balance of the trial.
Dr Issabella Brouwer was in the witness box for two days. The next witness to give evidence today is Dr Michael Rodriguez, a neuropathologist.
In advance of Dr Rodriguez being called in the presence of the jury this morning, I inquired of the Crown as to what areas were proposed to be the subject of questioning in examination-in-chief. In particular, I inquired whether areas of questioning of Dr Rodriguez would involve events, which were said to have occurred where one or other of the Accused had assaulted Joseph in the 51-day period when he was living with them in Oberon.
As is apparent from R v LN; R v AW (No. 6), the Crown has not, prior to this week, taken steps to invite the Crown medical experts to comment on various events admitted by one or other of the Accused, or referred to in the evidence of FN in the trial. These events include AW placing the child in an Esky on two occasions, one of which was said…

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 296
Decision Date: 22 March 2017

CaseChat Overview and Summary

In the case of R v LN; R v AW (No. 7), the Crown sought to adduce expert evidence in a murder trial against the two accused individuals. The legal dispute centred on whether this expert evidence should be excluded from the trial due to its non-inclusion in the supplementary expert report. The evidence in question was given during a voir dire, which is a preliminary examination of evidence to determine its admissibility. The court was required to decide if the evidence should be excluded because it was not part of the supplementary expert report.

The court examined the procedural and evidential rules governing expert evidence in criminal trials, specifically the requirement for supplementary expert reports to list all evidence that experts intend to rely on during their testimony. The court also considered the purpose of these rules, which is to ensure fairness and transparency in the proceedings by providing all parties with adequate notice of the evidence that will be presented. The court had to balance the need for these rules with the potential prejudice to the Crown's case if the evidence was excluded. Ultimately, the court determined that the evidence should not be excluded, as the rules were not strictly adhered to, and the exclusion of the evidence would not be just in the circumstances.

The court held that the expert evidence should be admitted because the failure to include it in the supplementary expert report was not significant enough to warrant exclusion. The court found that the evidence was relevant and that the defence had not been unfairly prejudiced by the omission. The Crown was therefore allowed to present the expert evidence in the trial. The court's decision was based on a careful consideration of the rules and their purpose, as well as the specific circumstances of the case. The court emphasised that while adherence to the rules is important, the ultimate goal is to ensure a fair trial. The final orders of the court allowed the expert evidence to be presented in the trial.

Orders