R v LN; R v AW (No. 3)

[2017] NSWSC 154

Supreme Court

New South Wales

Medium Neutral Citation:	R v LN; R v AW (No. 3) [2017] NSWSC 154
Hearing dates:	24 February 2017
Date of orders:	24 February 2017
Decision date:	24 February 2017
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	Evidence of conversation allowed.
Catchwords:	CRIMINAL LAW - murder trial - objection to part of conversation recorded during walkthrough interview between police and Accused LN - objection on ground of relevance and under s.137 Evidence Act 1995 - evidence relevant - probative value not outweighed by any prejudicial effect - 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

1. JOHNSON J: In the concluding phases of discussions between counsel concerning appropriate editing of lengthy interviews which have taken place between police and one or other of the Accused over many weeks, there is a single issue for consideration and determination by the Court. It is of course, highly desirable that the parties embark upon this process of discussion to narrow what is to be tendered, and to avoid the need for a Court decision unless necessary. The process undertaken in this trial, of which this is an example, is a highly satisfactory one.

2. The issue that arises for consideration by the Court is this. On 13 August 2014, police conducted a walk-through interview where the Accused LN accompanied police to the park over the road from LN's house in Oberon where it is said that an incident occurred on 3 August 2014 involving the child Joseph, and some dogs. To understand this aspect, I refer to my outline of the Crown case against each Accused in R v LN; R v AW (No. 1) [2017] NSWSC 119.

3. In the course of the recorded conversation in the park, the following was said:

Detective Sergeant Fawkner: "All right. When you said that you wanted to tell me things about your thoughts of killing [Joseph], how did you think about that?”.

LN: “I, at first, I didn't think about it. It was the chatter that was making me angry”.

Detective Sergeant Fawkner: “Yep, but in what, how would you do it?”.

LN: “Like, what do you mean?”.

Detective Sergeant Fawkner: “How would you kill him?”.

LN: “I would have just strangled him, taken him to Oberon Police Station and I would have told them that ‘I did it’”.

4. The opening part of that conversation, where the police officer asks LN what she wished to tell him about her thoughts of killing the child, is to be understood as a reference back to an earlier part of the conversation, recorded at page 45 of the transcript (part Exhibit PTF). The earlier part of the conversation was part of the material upon which the Court relied in allowing the Crown to utilise this evidence for tendency purposes, as explained in R v LN; R v AW (No. 1).

5. The present part of the conversation (at page 57) was not included in the tendency notice. That may be a matter of oversight, but the fact is it is not part of my earlier ruling. The Crown has indicated, in those circumstances, that it would not seek to rely upon this part of the conversation for tendency purposes.

6. Objection is taken to the tender of this material by Mr Wilson SC, for LN, upon the basis that it involves a form of speculation in that the police officer asked LN how would she kill the child, and LN replied by reference to strangulation. There is no medical evidence to suggest that strangulation played any part in the death of Joseph. It is submitted that this is not relevant and is prejudicial upon the basis that it involves a reference to an act that did not happen.

7. The Crown submits that this is relevant in that it involves a further explanation by LN of her thought processes towards Joseph. Although it is not said that strangulation is involved in this case, the Crown argues that it provides a further illustration of what was in the mind of LN when she was discussing her approach to Joseph.

8. In making this ruling, I keep in mind that the starting point in this part of the conversation is a reference back to what had earlier been said by LN. The topic of what LN had said about thoughts of killing Joseph is something that will be before the jury in the way in which I have outlined. This part of the discussion involved the police officer seeking further detail of LN's thought processes in that respect. It is true that what she said is something which, on the evidence, just simply did not happen - there was not any form of strangulation.

9. That however, it seems to me, is one aspect only of the matter. The Crown case against LN is, in part at least, a circumstantial one. The Crown, of course, has to prove not only that LN committed an act or acts that caused the death of Joseph, but that she intended to kill him or to inflict grievous bodily harm. The fact that LN exposed her thought processes in this way, which involved an indicated intention to kill, utilising a particular means which did not actually get used in this case, does not it seems to me, stand in the way of its admission.

10. It will be made entirely clear to the jury, of course, that strangulation is not said to have played any part in this case. However, the issue is what was in the mind of LN at relevant times towards Joseph, and in particular, in circumstances where she had told police that she had thoughts of killing the child.

11. I am satisfied that this evidence is relevant and probative. I am not satisfied that any prejudicial effect outweighs its probative value. The fact that there is the reference to strangulation which is not directly relevant to this trial, is not something which, in my view, would distract the jury in such a way as to activate exclusion under s.137 Evidence Act 1995.

12. Accordingly, I propose to admit this part of the conversation in evidence.

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