Citation: R v LN; R v AW (No. 3) [2017] NSWSC 154
Court: Supreme Court of New South Wales
Date: 24 February 2017
Judge(s): Johnson J
Background
This decision is the third in a series of interlocutory rulings during a murder trial involving two accused, referred to as LN and AW. The proceedings concerned the death of a child named Joseph, with an incident alleged to have occurred on 3 August 2014 at a park near LN's home in Oberon. The broader Crown case is outlined in the first ruling in the series, R v LN; R v AW (No. 1) [2017] NSWSC 119.
On 13 August 2014, police conducted a walkthrough interview with LN at the park. During that recorded conversation, a detective asked LN how she would have killed the child, and LN responded that she would have strangled him and then reported herself to police. There was no medical evidence that strangulation played any part in Joseph's actual death.
Counsel for LN objected to the tender of this portion of the interview transcript. The dispute was resolved through a narrow evidentiary ruling, with the Crown confirming it would not seek to use the exchange for tendency purposes given it was not included in the tendency notice.
Legal Issues
- Whether the portion of the walkthrough interview transcript in which LN described how she would have killed Joseph was relevant to the Crown's case.
- Whether the probative value of that evidence was outweighed by its prejudicial effect, such that it should be excluded under section 137 of the Evidence Act 1995.
Decision
Johnson J held that the evidence was relevant. The Crown's case against LN was at least partly circumstantial, and it needed to establish not only that LN caused Joseph's death but that she intended to kill him or inflict grievous bodily harm. LN's description of a hypothetical method of killing, though it did not correspond to the actual cause of death, shed light on her thought processes and her state of mind toward the child at the relevant time.
The court acknowledged that strangulation was not said to have played any part in the case and accepted that the exchange had the character of speculation prompted by police questioning. However, Johnson J found this went only to one aspect of the matter. The evidence remained probative because it formed part of a broader conversation in which LN had already told police she had thoughts of killing the child, and the detective was seeking further detail on those thoughts.
On the section 137 question, Johnson J was not satisfied that any prejudicial effect outweighed the probative value of the evidence. The court noted that the jury would be clearly directed that strangulation was not alleged in the case, and that this clarification would prevent the reference from distracting the jury in a way that might justify exclusion.
The evidence was accordingly admitted.
Orders Made
• The part of the conversation at page 57 of the transcript is admitted in evidence.
Key Takeaways
- A statement by an accused describing a hypothetical method of killing a victim can be admissible where it is relevant to the accused's state of mind and intent, even if that method was not involved in the actual death.
- Under section 137 of the Evidence Act 1995, prejudicial effect must outweigh probative value before evidence is excluded. A reference to an uncharged or unrelated act does not automatically satisfy that threshold.
- The Supreme Court treated the absence of a tendency notice as determinative of whether the evidence could be used for tendency purposes, with the Crown conceding that point without further argument.
- Where an exchange in a police interview is preceded by an earlier recorded statement, courts may consider the full conversational context when assessing relevance, rather than treating the impugned portion in isolation.
- In a circumstantial murder case, evidence of an accused's expressed intention to kill, even in hypothetical terms, can bear directly on the question of whether the requisite intent existed at the relevant time.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), section 137
Cases
- R v LN; R v AW (No. 1) [2017] NSWSC 119