R v NB

Case [2022] NSWSC 151 22 February 2022

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v NB [2022] NSWSC 151
Hearing dates: 17, 18, 19, 20, 21, 24, 25, 27, 28 and 31 January 2022
and 1, 2, 3, 4, 7, 8 and 9 February 2022
Date of orders: 22 February 2022
Decision date: 22 February 2022
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
The accused is guilty of murder.

Catchwords:
CRIME — murder — death of a child — circumstantial case
EVIDENCE — opinion evidence — exceptions — expert opinion
CRIMINAL PROCEDURE — trial — judge alone

Legislation Cited:
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42.
Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35.
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63.
Holt v R [2021] NSWCCA 140.
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66.
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305.
Meyers v The Queen (1997) 7 ALJR 1488; [1997] HCA 43.
Peacock v King (1911) 13 CLR 619; [1911] HCA 66.
Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44
R v Mostyn [2004] NSWCCA 97; (2004) 145 A Crim R 304.
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35.
The Queen v Hillier [2007] HCA 13; (2007) 228 CLR 618.
Thomas v The Queen (1960) 102 CLR 584; [1960] HCA 2
Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31.

Category: Principal judgment
Parties: Regina (Crown)
NB (Accused)
Representation:
Counsel:
L Shaw (Crown)
J Manuell SC with I Nash (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
North & Badgery Solicitors (Accused)

File Number(s): 2018/7128
Publication restriction: There are publication restrictions in place concerning the identity of the accused, the deceased, any children involved in the proceedings and the location in which the deceased passed away pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

Judgment

The deceased’s short life
The placement of the deceased with the accused
Investigation into the deceased’s death
The Crown case
The accused’s case
A circumstantial case
Delay in prosecution
The events of the morning of 23 March
The triple-0 call
The accused’s first Police interview
The accused’s second Police interview
The accused’s third Police interview
Covertly recorded evidence
The conversation with the caseworker on 2 April
The forensic evidence
The evidence of members of the accused’s family
Kevin
Child 1
Child 2
Consciousness of Guilt
Child 3
Visits with the Johnsons
Events of the next 24 hours
Events of 22 March
Evidence about the deceased’s sickness in the days before his death
The expert evidence
Dr Brouwer
Dr Marks
Dr Orde
Professor Ellis
Dr Currie
Discussion as to the histopathology
Further comments on Dr Currie’s evidence
When did the…

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.

Continue reading R v NB

Details

AGLC: R v NB [2022] NSWSC 151
Case: [2022] NSWSC 151
Decision Date: 22 February 2022

CaseChat Overview and Summary

The case of R v NB came before the Supreme Court of Victoria, where the defendant, NB, was charged with the murder of his young child. The prosecution relied on circumstantial evidence to establish NB's guilt, including the injuries found on the child and the timeline of events leading up to the child's death. The defendant claimed the injuries were accidental, resulting from the child's rough play. The central legal issues involved whether the circumstantial evidence was sufficient to prove the defendant's guilt beyond reasonable doubt and the admissibility of expert opinion evidence regarding the cause of the child's injuries.

The court considered the strength of the circumstantial evidence, noting that while no single piece of evidence might be conclusive, the cumulative weight of the evidence could lead to a conclusion of guilt beyond reasonable doubt. Expert opinion evidence was admitted to assist the court in understanding the nature of the injuries and their likely cause. The court emphasised the importance of expert testimony in complex medical cases where the layperson would be unable to draw conclusions from the evidence. The judge concluded that the evidence, when considered as a whole, was sufficient to establish the defendant's guilt.

The Supreme Court found NB guilty of murder. The reasoning was based on the combination of the circumstantial evidence, the improbability of the defendant's explanation, and the expert opinion evidence. The court was satisfied that the evidence established the defendant's actions as the cause of the child's death. The final orders included a finding of guilt and a direction for the preparation of a presentence report.

Orders