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Supreme Court 16 March 2017

R v LN; R v AW (No. 5)

[2017] NSWSC 263

Homicide
CRIMINAL LAW MURDER TRIAL MOTHER AND STEPFATHER OF CHILD DEFENCE OBJECTION EVIDENCE ALLOWED

Citation: R v LN; R v AW (No. 5) [2017] NSWSC 263
Court: Supreme Court of New South Wales
Date: 16 March 2017
Judge(s): Johnson J

Background

The two accused, referred to by their initials LN and AW, were standing trial for the 2014 murder of a three-year-old child. LN was the child's mother and AW his stepfather. The Crown alleged that LN directly inflicted fatal injuries on the child, and that AW was party to a joint criminal enterprise to assault the child over the weeks preceding his death.

A central factual dispute in the trial was whether the child had been knocked over by dogs on a lead in a park at Oberon on 3 August 2014. Both accused had consistently maintained that story in police interviews. The Crown's case was that the account was false and that the child's injuries were caused by repeated assaults.

An off-duty police officer happened to be sitting in a Centrelink waiting room in Bathurst on 26 August 2014 when he overheard what appeared to be LN speaking on a mobile phone and, at the end of the call, AW making a comment to her. The Crown sought to tender that overheard conversation as evidence at trial. The defence objected.

  • Whether the evidence of the overheard conversation was relevant to issues in the trial
  • Whether the evidence should be excluded under section 137 of the Evidence Act 1995 (NSW), on the basis that its probative value was outweighed by the danger of unfair prejudice
  • Whether the evidence, if admitted, should be limited to the case against AW only (as the person who made the critical remark), or admitted against both accused

Decision

Johnson J held that the overheard conversation was relevant to the issues in the trial. The female's account of the park incident was consistent with what LN had told police in interviews, and AW's comment at the conclusion of the call, "You've got to stick with that," went directly to the truthfulness of the account both accused had been giving authorities. The evidence bore on whether the park incident had occurred at all.

The defence submitted that, without a complete record of the phone conversation, AW's remark could be misunderstood or taken out of context. His Honour was not persuaded by that argument. Johnson J noted that Senior Constable Nocente had overheard the exchange in a public place without any official questioning involved, and that the statement he provided the following day was relevant to the central factual dispute in the case.

On the section 137 question, Johnson J found that the probative value of the evidence was not outweighed by any potential unfair prejudice to the accused. He declined to limit the evidence to the case against AW alone. Because the exchange occurred between the two accused together, and against the background of extensive interview, telephone intercept, and surveillance evidence already before the jury, the evidence was admissible in the case against both LN and AW.

Johnson J also noted that a check of telephone intercept records should be completed before Senior Constable Nocente was called to give evidence, to establish whether any recording of the call existed. With at least a week of Crown evidence still to come, there was sufficient time to complete that inquiry before the witness was called.

Orders Made

• Senior Constable Nocente is allowed to give evidence in accordance with the statement which is MFI 22
• Senior Constable Nocente should not be called until there is a complete examination of material to see whether there is any telephone record relating to the suggested conversation
• Senior Constable Nocente can be called at a convenient time when there is a response to that inquiry

Key Takeaways

  • The Supreme Court confirmed that a spontaneous, overheard conversation in a public place between accused persons is capable of being relevant evidence, even where the listener heard only part of the exchange.
  • Under section 137 of the Evidence Act 1995, a court must exclude evidence if its probative value is outweighed by the danger of unfair prejudice. Johnson J found that threshold was not met on these facts.
  • Where two accused are together and one speaks in the presence of the other, a court may admit the resulting evidence against both, not merely against the person who made the particular statement.
  • The possible existence of a telephone intercept recording of the same conversation did not affect the admissibility of the witness's direct account of what he overheard.
  • Evidence admitted in a joint trial against multiple accused is not necessarily restricted to the case against one of them; the broader context of the trial, including prior statements and surveillance evidence, can inform how the evidence is applied.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 137

Cases
- R v LN; R v AW (No. 1) [2017] NSWSC 119