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2
Supreme Court 12 February 2015

R v A (No 2)

[2015] NSWSC 76

Homicide
CRIMINAL LAW EVIDENCE CONTEXT EVIDENCE WHETHER EVIDENCE ADMISSIBLE

Citation: R v A (No 2) [2015] NSWSC 76
Court: Supreme Court of New South Wales
Date: 12 February 2015
Judge(s): Bellew J

Background

The accused faced trial for the manslaughter of her infant son, who died in August 2012. The child had sustained extensive injuries, including multiple fractures of varying ages, severe head trauma, and blunt force abdominal injuries. Paramedics attended the family home and found the child unresponsive; he was taken to Wollongong Hospital, where resuscitation efforts were ultimately unsuccessful.

The Crown's case, as it proceeded to the jury, was one of manslaughter by gross criminal negligence. Specifically, the Crown alleged that the accused had failed to obtain appropriate medical assistance for her son at a time when he was obviously and seriously ill.

During a pre-trial evidentiary hearing, Crown counsel sought to lead evidence from a witness who had observed the accused grab the deceased child by the arm and throw him over a front fence. The accused's senior counsel objected to this evidence on the grounds of relevance, and alternatively sought its exclusion under section 137 of the Evidence Act 1995.

  • Whether the prior incident of physical conduct toward the deceased was relevant to the Crown's case of manslaughter by gross criminal negligence.
  • If relevant, whether the evidence should nonetheless be excluded under section 137 of the Evidence Act 1995 because its probative value was outweighed by the danger of unfair prejudice to the accused.

Decision

Bellew J held that the evidence of the fence incident was not relevant to the charge as framed. The Crown case rested entirely on an alleged failure to act, not on any deliberate harmful act by the accused. His Honour reasoned that evidence of a prior physical act toward the deceased did not bear upon whether the accused had negligently failed to summon medical assistance.

The Crown had sought to rely on two authorities, R v Toki and FDP v R, to support admission of the evidence as demonstrating the nature of the accused's relationship with, and attitude toward, the deceased. Bellew J distinguished both decisions on the basis that they concerned charges involving deliberate conduct, not the gross criminal negligence alleged here.

His Honour added that, even if the evidence had been found to be relevant, he would have excluded it under section 137 of the Evidence Act 1995. There was, in his view, a real risk the jury would use the evidence to engage in illegitimate reasoning, for example by inferring the accused was a person of bad character who was therefore guilty of the offence charged.

Orders Made

• The evidence is excluded.

Key Takeaways

  • Evidence of a prior physical act toward a deceased victim may be irrelevant where the Crown's charge is manslaughter by gross criminal negligence, because that charge is founded on a failure to act rather than on any deliberate conduct.
  • Authorities admitting relationship or context evidence in cases involving deliberate acts toward a victim are distinguishable when the Crown's case rests solely on alleged omissions.
  • Under section 137 of the Evidence Act 1995, a court will exclude relevant evidence where its probative value is outweighed by the danger of unfair prejudice, including the risk of the jury reasoning improperly from evidence of prior bad conduct.
  • The framing of the charge at the time of trial, rather than at an earlier stage of proceedings, determined the relevance analysis: the accused had been re-indicted from murder to manslaughter, and that change directly affected whether the contested evidence was admissible.
  • Where evidence carries a real risk of inviting illegitimate reasoning by the jury, exclusion under section 137 operates as a safeguard independent of any finding on relevance.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), particularly section 137

Cases
- R v Toki [2000] NSWSC 999; (2000) 116 A Crim R 536
- FDP v R [2008] NSWCCA 317
- DJV v R [2008] NSWCCA 272
- KJS v R [2014] NSWCCA 27
- KTR v R [2010] NSWCCA 271
- Norman v R [2012] NSWCCA 230
- Qualtieri v R [2006] NSWCCA 95
- RG v R [2010] NSWCCA 173
- R v Yates [2002] NSWCCA 520
- Wilson v R [1970] HCA 17; (1970) 124 CLR 334