Citation: R v LN; R v AW (No. 6) [2017] NSWSC 283
Court: Supreme Court of New South Wales
Date: 20 March 2017
Judge: Johnson J
Background
The two accused, a mother and her partner (referred to by their initials), were standing trial for the murder of the mother's three-year-old son, Joseph, who died in 2014. The Crown alleged the mother committed the fatal act with intent to kill or cause grievous bodily harm, and that the partner's liability arose through extended joint criminal enterprise, based on a course of assaults on the child since June 2014. The partner was not alleged to have caused Joseph's death directly.
In the fourth week of trial, the forensic pathologist who conducted the autopsy was giving evidence in chief. Counsel for the partner objected to a line of Crown questioning concerning the Esky incident, where the partner was alleged to have placed the child inside an Esky and closed the lid, potentially causing neck injuries. The objection was that this questioning sought to advance a different case against the partner than the one the Crown had opened to the jury.
The controversy arose in part because the Crown had not completed a joint expert conference before trial and had not provided the forensic pathologist with supplementary materials prior to her giving evidence, meaning these matters were being explored for the first time in front of the jury.
Legal Issues
- Whether the Crown was entitled to ask the forensic pathologist questions about the Esky incident, given that topic had not been addressed in her expert report.
- Whether pursuing that line of questioning amounted to the Crown changing its case against the partner beyond what had been opened to the jury.
- Whether the joint expert conference procedure under Part 75 Rule 3K of the Supreme Court Rules 1970 should have been used in this trial, and what implications follow from its absence.
Decision
Johnson J held that the Crown is confined to the case it communicated before trial and opened to the jury on 27 February 2017. The Crown confirmed it did not intend to argue that any act of the partner caused or substantially contributed to Joseph's death. On that basis, the Crown's case against the partner remained one of extended joint criminal enterprise only, centred on the mother's fatal act.
His Honour accepted that the Crown is entitled to ask expert witnesses about injuries observed on the child and whether particular alleged assaults could explain those injuries. Questions about various alleged methods of assault, including the Esky incident, may be explored with medical witnesses in that limited context.
However, the Crown cannot use such questioning as a vehicle to alter the basis of its case against the partner. Any evidence adduced about the Esky incident could not be deployed to assert that the partner's conduct caused or contributed to the death. The Crown's position, as confirmed in court, was that it would not seek to go that far.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Supreme Court confirmed that the Crown is bound by the case it opens to the jury and cannot, through expert questioning mid-trial, effectively advance a different theory of liability against an accused.
- Crown prosecutors may ask medical experts questions about whether specific alleged assaults explain injuries observed on a deceased, even where those assaults are attributed to only one accused, provided the questioning does not shift the underlying basis of the case against any other accused.
- Under Part 75 Rule 3K of the Supreme Court Rules 1970, joint expert conferences in criminal proceedings in the Supreme Court require the consent of all parties. In this case, the partner's legal representatives withheld consent, meaning no conference took place.
- Johnson J observed that conducting expert examination without a prior conference, and without supplementary materials being provided to the expert in advance, left significant issues to be resolved for the first time in the presence of the jury, a situation the joint conference procedure is designed to avoid.
- His Honour expressed the view that the joint expert conference procedure, well established in civil proceedings under Rules 31.24 to 31.26 of the Uniform Civil Procedure Rules 2005, should be extended to criminal proceedings in a manner consistent with the efficient trial management objects in s 134 of the Criminal Procedure Act 1986.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 134, s 146(2)
- Supreme Court Rules 1970 (NSW), Part 75 Rule 3K
- Uniform Civil Procedure Rules 2005 (NSW), Rules 31.24 to 31.26
Cases:
- Abdallah v R [2016] NSWCCA 34
- R v LN; R v AW (No. 1) [2017] NSWSC 119