Citation: R v LN; R v AW (No. 2) [2017] NSWSC 153
Court: Supreme Court of New South Wales
Date: 24 February 2017
Judge: Johnson J
Background
Two accused persons faced trial for the 2014 murder of a three-year-old child. The Crown alleged that the child's mother inflicted fatal injuries on or about 3 August 2014. The defence maintained the child suffered accidental injuries from a fall in a park near the family home.
Police lawfully recorded a series of conversations involving the two accused between 9 August and 12 September 2014, using surveillance devices and telephone intercepts obtained under warrant. Those conversations captured the accused speaking with each other and with a third-party relative.
The Crown sought to tender portions of those recordings at trial, arguing they contained express or implied admissions and demonstrated consciousness of guilt. Defence counsel objected to parts of the evidence on several grounds, prompting this pre-trial ruling.
Legal Issues
- Whether the prosecution's s.142 notice under the Criminal Procedure Act 1986 adequately disclosed the Crown's intention to rely on electronic evidence, including recordings and transcripts
- Whether any recorded conversation was inadmissible because a participant was an "agent of the state" (applying the principles in Pavitt v R)
- Whether any conversation should be excluded under s.137 of the Evidence Act 1995 on the basis that its probative value was outweighed by the danger of unfair prejudice
- Whether specific conversations were relevant within the meaning of the Evidence Act 1995
Decision
On the s.142 notice: Johnson J found that a prosecution notice under s.142 of the Criminal Procedure Act 1986 must expressly identify electronic evidence such as recordings and transcripts that the Crown intends to adduce. The word "document" in s.142(1)(d) and (i), read together with the definition in s.21 of the Interpretation Act 1987, is broad enough to encompass audio recordings. At a minimum, the notice must clearly flag an intention to rely on evidence of this type and set out the steps taken to make that material meaningfully available to the defence. His Honour observed that the prosecution notice in this case fell short of that standard, but did not exclude the evidence on that basis alone, given that the substance of the Crown's reliance on the recordings had been communicated to defence legal representatives in other ways, including through the Crown Case Statement.
On the "agent of the state" objection: The accused argued that one conversation was inadmissible because the third-party participant was acting as an agent of police. Johnson J found this had not been established on the evidence. As the participant was not shown to be an agent of the state, the principles from Pavitt v R were not engaged, and the s.137 objection on that basis was overruled.
On relevance and s.137 exclusion: The remaining conversations were challenged on the grounds that they were irrelevant or that their prejudicial effect outweighed their probative value. Johnson J held that statements made by the accused in the weeks following the child's death, which could bear on how and why the child died, were prima facie relevant. One conversation involving what appeared to be an apology by the child's mother was accepted as capable of constituting evidence of consciousness of guilt, even though it was open to other interpretations. Questions of weight and competing construction were matters for the jury. The s.137 objections were overruled across the various conversations.
Orders Made
- The Crown was permitted to adduce all of the recorded conversations to which objection had been taken.
- Agreed edits to certain transcripts were to be carried out, and additional contextual material was to be included in some transcripts, by agreement between the parties.
Key Takeaways
- A prosecution notice under s.142 of the Criminal Procedure Act 1986 must expressly identify recordings and transcripts of electronic evidence that the Crown intends to rely upon at trial, with the word "document" interpreted broadly to include audio recordings under the Interpretation Act 1987.
- Sections 142, 143, and 149A of the Criminal Procedure Act 1986, read together, create a framework requiring the prosecution to disclose electronic evidence and enabling the defence to identify areas of dispute, including the accuracy of transcripts, before trial.
- The "agent of the state" principle from Pavitt v R requires affirmative evidence that a conversation participant was acting under police direction; mere association with investigating authorities is insufficient to engage the doctrine.
- Under s.137 of the Evidence Act 1995, evidence is not excluded simply because it is ambiguous or open to competing interpretations. Where evidence is capable of supporting an inference of consciousness of guilt, questions of weight and construction are for the jury.
- Statements made by an accused in the period following an alleged offence, even where their precise meaning is contested, may be relevantly connected to the circumstances of the offence and admissible as part of a circumstantial Crown case.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), ss.142, 143, 144, 146, 149A
- Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Act 2013 (NSW)
- Evidence Act 1995 (NSW), s.137
- Interpretation Act 1987 (NSW), s.21
Cases:
- Pavitt v R [2007] NSWCCA 88; 169 A Crim R 452
- R v LN; R v AW (No. 1) [2017] NSWSC 119
- IMM v The Queen [2016] HCA 14; 257 CLR 300
- Grey v The Queen [2001] HCA 65; 75 ALJR 593
- Mallard v The Queen [2005] HCA 68; 224 CLR 125
- Papakosmas v R [1999] HCA 37; 196 CLR 297
- R v Burton [2013] NSWCCA 335; 237 A Crim R
- R v Clark [2001] NSWCCA 494; 123 A Crim R 506
- R v Reardon (No 2) [2004] NSWCCA 197; 60 NSWLR 454
- R v Turnbull (No. 25) [2016] NSWSC 831
- BJS v R [2013] NSWCCA 123; 231 A Crim R 537