R v Ryan (a pseudonym) (No.2)
[2021] NSWDC 733
•19 November 2021
District Court
New South Wales
Medium Neutral Citation: R v Ryan (a pseudonym) (No.2) [2021] NSWDC 733 Hearing dates: 19 November 2021 Decision date: 19 November 2021 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Application by Crown to adjourn proceedings in order to cross examine expert witness granted.
Catchwords: CRIMINAL - adjournment to cross examine expert witness.
Category: Procedural rulings Parties: Regina (Crown/Applicant)
Ms Ryan (a pseudonym) (Offender/Respondent)Representation: Ms Keay (Crown Prosecutor/Applicant)
Mr Dalton SC (Counsel for the Offender/Respondent)
File Number(s): 2019/201825 Publication restriction: Statutory non publication and suppression orders made of the names of the offender, child victim, co offender or of any other thing that might, directly or indirectly, identify any of them.
Judgment
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Ms Ryan (a pseudonym) is before the Court today for sentence in relation to two serious offences concerning her child and her role in the injuries which he sustained, which are severe.
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The proceedings were listed before me on Monday of this week. On that occasion, amongst other things, an application was made by the offender for me to disqualify myself from hearing the sentence proceedings. In the course of delivering a judgment rejecting that application (see R v Ryan (a pseudonym) (No.1) [2021] NSWDC 727), I noted the history of the matter - and that the listing on Monday of this week was (excluding bail applications) in fact the 18th listing before a judge of this Court. Today is therefore the 19th listing.
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That comment is not made critically of anybody, but it is necessary to explain why, on the 19th listing, the matter is again being adjourned.
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The reason for the adjournment is this: today senior counsel for the offender tendered four expert reports, the effect of which is to provide a powerful subjective case for the offender. Each report addresses, and makes findings of, significant intellectual impairment, cognitive functioning and the like. The Crown did not object to the tender of any of those reports; nor did the Crown, in consenting to the tender, require any of the authors to be present for cross-examination.
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Following the tender of those reports, the Crown played a disc which, in part, contains the conversation purportedly transcribed at paragraph 41 of exhibit B.
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The Crown will between now and the next hearing burn onto a USB stick that portion of the conversation which was played in Court today – and which will become an exhibit in the next listing.
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It is self-evident to anyone listening to the tape that the transcript in paragraph 41 of Exhibit B is, in relevant respects, wrong. It will be necessary, on the next listing, to have a discrete document being an agreed corrected version of the conversation - which will also become an exhibit.
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Following the playing of the disc, the Crown sought an adjournment so that Professor Woods (who was the author of exhibit 4) can be cross‑examined. The application is not opposed by the offender.
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I propose to grant the adjournment application, notwithstanding the lengthy history that this matter has.
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I am doing so because, at face value and unexplained, what is said by the offender in that recorded conversation in Exhibit B, and how she says it, does not seem to me (unassisted by further evidence) to be consistent with the conclusions reached by any of those experts who have provided exhibits 1 to 4 inclusive.
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It seems to me as a matter of fairness to the offender, as much as to the Crown, that that apparent inconsistency should be addressed and that Professor Woods should have the opportunity of considering the material. At the moment the conundrum might work adversely to the interests of the offender.
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For that reason, I grant the adjournment sought by the Crown - but not for long.
Decision last updated: 10 February 2022
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