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Supreme Court 22 March 2017

R v LN; R v AW (No. 7)

[2017] NSWSC 296

Homicide
CRIMINAL LAW MURDER TRIAL EVIDENCE GIVEN ON VOIR DIRE WHETHER EVIDENCE SHOULD BE EXCLUDED EVIDENCE ALLOWED

Citation: R v LN; R v AW (No. 7) [2017] NSWSC 296
Court: Supreme Court of New South Wales
Date: 22 March 2017
Judge: Johnson J

Background

Two accused were on trial for the murder of a child named Joseph. The Crown's primary case was that the child's fatal injuries were inflicted by the accused LN, with the accused AW also criminally liable under joint criminal enterprise principles. The defence case was that Joseph had sustained his injuries after tripping over a rope tied between two dogs in a park near the family home in Oberon.

The trial had already experienced significant procedural difficulty regarding expert evidence, outlined in the preceding judgment R v LN; R v AW (No. 6) [2017] NSWSC 283. Central to those difficulties was the Crown's failure, prior to that week, to invite its medical experts to comment on specific incidents involving alleged assaults on the child during the 51-day period he lived with the accused. Those incidents included the child being placed inside an Esky (with the lid held down or sat upon), a cupboard door being closed on the child's head, vigorous shaking, the use of a wooden spoon, and the restraint of the child with duct tape.

Dr Michael Rodriguez, a neuropathologist, was called to give evidence after Dr Issabella Brouwer had already completed two days of testimony. Dr Brouwer had addressed the Esky incident and its possible connection to the child's neck injury, and had on several occasions deferred to Dr Rodriguez's more specialised expertise. No supplementary expert report from Dr Rodriguez had been served addressing these topics.

  • Whether Dr Rodriguez should be permitted to give evidence about the Esky incident and any resulting neck or spinal injury in the absence of a supplementary expert report addressing those matters
  • Whether that evidence was relevant to the issues at trial
  • Whether the evidence should be excluded under section 137 of the Evidence Act 1995 on the basis that its probative value was outweighed by its prejudicial effect
  • Whether the late notice to the defence created procedural unfairness sufficient to warrant exclusion

Decision

Johnson J convened a voir dire under section 149E of the Criminal Procedure Act 1986 before Dr Rodriguez gave evidence before the jury. This allowed all parties to explore the proposed areas of questioning, including cross-examination by counsel for each accused, thereby curing the notice problem that had existed at the start of the day.

On the question of relevance, the court accepted that the precise timing of injuries was not an exact science. Dr Rodriguez's voir dire evidence indicated that the Esky incident, which appeared to have occurred at least a week before 3 August 2014, was a more remote potential explanation for the child's neck injury. However, the court found the evidence was nonetheless relevant to the issues in the trial, given the need to assess which events during the 51-day period may have contributed to the child's injuries.

The court rejected the section 137 objection. A significant factor in this reasoning was that Dr Brouwer had already given evidence before the jury about the Esky incident and its possible relationship to the neck injury, and had expressly deferred to Dr Rodriguez on that topic. Additionally, counsel for the accused AW indicated an intention to cross-examine Dr Rodriguez on this material regardless of whether the Crown was permitted to lead the evidence in chief.

Johnson J concluded that excluding the evidence at that stage would leave the jury with an unsatisfactory and incomplete picture. Permitting the Crown to lead the evidence, and allowing full cross-examination in response, was the course most likely to provide the jury with the complete evidentiary picture given the inherent imprecision in estimating when injuries occurred.

Orders Made

• The evidence adduced from Dr Rodriguez on the voir dire is allowed to be led by the Crown

Key Takeaways

  • The Supreme Court held that convening a voir dire under section 149E of the Criminal Procedure Act 1986 was an appropriate mechanism to address a late notice problem, where no supplementary expert report had been served and the defence were not on notice of a witness's proposed evidence on specific topics.
  • Where expert evidence on the same topic has already been placed before the jury, excluding further expert evidence on that topic risks leaving the jury with an incomplete and potentially misleading picture, a consideration that weighed against exclusion under section 137 of the Evidence Act 1995.
  • Relevance was not defeated by the fact that Dr Rodriguez's evidence identified the proposed mechanism as a more remote explanation for the injury in question; some connection to the issues at trial was sufficient.
  • Under section 137 of the Evidence Act 1995, the court assessed prejudicial effect in light of the existing state of the evidence, including what had already been led before the jury and what the defence intended to pursue regardless.
  • The defence's stated intention to cross-examine on a topic, even if the Crown was excluded from leading evidence on it, was a material factor in the court's assessment of how best to manage the trial fairly and completely.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 149E
- Evidence Act 1995 (NSW), s 137

Cases
- R v LN; R v AW (No. 6) [2017] NSWSC 283